Monday, October 25, 2010

Religion and Prohibition

          During Prohibition there were exemptions for sacramental wine and other religious uses of alcohol. The Eighteenth Amendment, which took effect in 1920, doesn't say anything about those exemptions. It just says that the manufacture, sale or transportation of intoxicating liquors within the United States is banned. It was federal legislation that exempted religious uses from the laws. When law and religion people talk about Prohibition and exemptions for sacramental wine, they usually say "of course" there were exemptions for sacramental wines. Even Justice David Souter, one of the strictest separationists between church and state to sit on the Supreme Court, wrote that [w]ithout an exemption for sacramental wine, Prohibition may fail the test of religion neutrality and therefore violate free exercise. I had unthinkingly accepted the exemption as well.
          Then I got to Chapter 12 of Daniel Okrent's interesting book, Last Call: The Rise and Fall of Prohibition. Chapter after chapter left the reader feeling sorry for all the people who lost their beer and wine and hard liquor, the vintners in California who tore up their grapes, and maybe even some of the saloon owners. Then I read about Georges Latour, a Catholic Frenchman who moved to California to produced wine in the Napa Valley. Latour was fortunate enough to corner the Catholic sacramental wine market. Okrent writes that Latour chose to "look the other way" whenever his wine was diverted from its legal uses. "When a priest took receipt of an order for, say, 120 gallons of Beaulieu (a not uncommon amount), he suddenly had an inventory of 46,000 communion sips, more or less--or perhaps, 10,000 communion sips, with nearly a hundred gallons set aside for members of the congregation. Sometimes the wine didn't even leave the rectory. In 1932, six cases of Beaulieu's best were shipped to Chicago expressly for the use of Cardinal George Mundelein." 
         Catholics were not the only ones to benefit, because Latour also produced kosher wine. Catholicism has a very official hierarchy, and the bishops had to approve purchases for the priests. In Judaism, however, any rabbi could show a list of congregants and get alcohol for them. The numbers of Jewish congregation members increased dramatically and the names of the dead were added to their enrollment lists. Some rabbis opened "wine stores" where customers signed up for membership as they bought their wine. "There were rabbis who dealt in sacramental champagne, sacramental creme de menthe, sacramental brandy, and various other liquors utterly unconnected to any aspect of Jewish religious practices."
          The First Amendment prevents the courts from investigating many religious claims, and so "any man who dressed in solemn black, possessed a Jewish cast of countenance, and wore a beard was automatically a rabbi," even Rabbis Patrick Houlihan and James Maguire.  
          Many constitutional law scholars continue to argue that the First Amendment requires exemptions from laws for religious believers. Last Call reminded me that the most famous religious exemption from a neutral law of general applicability encouraged people to join churches (so they would get their drink), abetted fake entry into the ministry, gave clergy like the Cardinal special benefits for themselves, and gave the churches more power to recruit new members and to help those members violate the law. 
          So don't assume that religions always deserve exemptions from the law. The case of Prohibition suggests otherwise. 

The First Amendment Protects Witches Too

          By now everyone has an opinion, and you can choose which side to take. Was Christine O'Donnell, the Delaware Republican Tea Party Senate candidate, in a debate with her Democratic opponent Chris Coons, making the sophisticated point that the the Establishment Clause has been misinterpreted to require the separation of church and state? Or was she unaware that the First Amendment has an Establishment Clause?  Watch the video or read the transcript

          Coons said that “religious doctrine doesn't belong in our public schools.”

          “Where in the Constitution is the separation of church and state?” O'Donnell asked Coons.

          He said it was in the 1st Amendment.

          “Let me clarify,” O’Donnell continued. “You’re telling me that separation of church and state is in the 1st Amendment?”

          “Government shall make no establishment of religion,”  came the reply.

           “That’s in the 1st Amendment,” she asked.

          To me it sounds like she didn't know the Establishment Clause is in the First Amendment. That interpretation is supported by O'Donnell's objection to the main point that Coons was making, namely that  private and parochial schools are free to teach creationism but that "religious doctrine doesn't belong in our public schools." "Local schools do not have the right to teach what they feel?" O'Donnell said. "Talk about imposing your beliefs on the local schools." Coons had the law on his side here. The imposing your beliefs was done by the Supreme Court, which has clearly stated that teaching creation science in the public schools violates the Establishment Clause. Later in the debate, O'Donnell admitted that she couldn't remember the text of the Fourteenth Amendment, which provides the reason why the Establishment Clause applies to public schools in Delaware. The Court has ruled that the Fourteenth Amendment applies the First Amendment (which mentions only Congress) to state and local governments.
            What lessons should we learn from the constitutional debate in Delaware?
        First, if you are going to be a strict textualist in interpreting the Constitution, you should keep a copy in your pocket, as Justice Hugo Black always did. Black was very strict about the Constitution. In the First Amendment context, he thought that no means no, and so believed that Congress should pass no laws limiting First Amendment freedoms. Ironically, the strict textualist Black acknowledged that the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."
          Second, it is naive to think that the text of the Constitution can answer all the questions posed to it. It is clear what the Constitution means when it says that the president must be thirty-five years old and potential senators like O'Donnell must be thirty. But other constitutional questions require analysis and interpretation of what the Constitution means in circumstances unforeseen by the Framers. We think that the Internet is protected by free speech, for example, even though the Internet was not contemplated by the Framers and the word Internet does not appear in the Constitution.
        If O'Donnell was making the point that the words separation of church and state are not in the Constitution, she is mistaken to think that the Constitution can be interpreted by relying only on the words in the Constitution itself. After all, the First Amendment doesn't say that witches enjoy the free exercise of religion. And the Framers were not keen on witches either. But, even if she is not a witch, surely O'Donnell would have to agree that the Constitution protects them too, even though they are not in the text of the Constitution or in the minds of the Framers?


Sunday, October 17, 2010

JN36TN and Under God

          JN36TN. Could you tell what JN36TN means if you saw it on a license plate? Does it mean, My name is John, I am 36 and was born in Tennessee? Or does it refer to the Bible's John 3:16: "For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life."
          Shawn Byrne wanted to put JN36TN on his Vermont vanity license plate. The state law required him to explain what the vanity plate meant, and he wrote that it referred to the biblical text. The state refused his request because the law prohibited license plates that referred to religion or a deity. The Second Circuit wisely invalidated the law as an instance of viewpoint discrimination under the Free Speech Clause.  If Byrne had said he was 36-year-old John from Tennessee, the state would have accepted his application. 
          The other examples given by the court confirm that the law should not have survived constitutional scrutiny. The state had allowed messages such as HARMONY, LOVE, EARTH1, AMFREE, PEACE2U, LOVLIFE, THNKPOS, CARP DM, BEJOYFL, DARE2BU, REJOICE. It rejected SEEKGOD, 1GOD, THE REV, AND KRISHNA, but allowed GEMINI; LIBRA; GENESIS and CREED (because they are musical groups); STJOHN (the U.S. Virgin Island); SINNER, ANGEL1, ANGEL21, ANGEL23, ANGELSC, BUDDHA AND GODDESS (because they were nicknames). The state rejected BVM22 when described as a reference to the Blessed Virgin Mary and JMJ1 as a reference to Jesus, Mary, Joseph1. Of course someone named John M. Jones could have qualified for the JMJ1 plate. These examples confirm that the statute favored secular viewpoints over religious viewpoints and violated the First Amendment.
          These types of discrimination sometimes persuade people that our society is anti-religious, which then inspires them to put more religion back in the public square. The Texas legislature did something like this in 2007 when it added the words "under God" to the Texas pledge of allegiance and required that the new pledge be recited in public schools. The pledge states: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." 
          Although one sponsor of the bill explained that the purpose of the amendment was to honor the religious, Judaeo-Christian roots of the state, another sponsor said that the purpose was to match the language of the Texas pledge to that of the U.S. pledge of allegiance. 
          Under First Amendment case law, legislation must have a secular purpose. The Fifth Circuit foolishly ruled that adding "under God" to the Texas pledge had the secular purpose of matching the national pledge and therefore did not violate the Establishment Clause. Of course the new Texas pledge does not really match the national pledge; it lacks with liberty and justice for all. The Fifth Circuit also concluded that the pledge did not favor religion, endorse religion, or coerce religion.     
          The Fifth Circuit missed the point. The "under God" pledge favors religion just as much as the license plate law disfavors it. Individuals should be free to speak about their religions--even on their license plates. But the government is not supposed to have a religion. The state is not supposed to put that religion into a state pledge and require individuals to recite their allegiance to it. 


Excluding Women Reporters

          New York Republican gubernatorial candidate Carl Paladino has rightly received criticism for his antigay comments, including his remarks that children should be shielded from gay activities, especially their parades. Paladino criticized his Democratic opponent, Andrew Cuomo, for marching in New York's gay pride parade and letting his children watch it
          Patt Morrison of the L.A.Times reports on the missed story (covered only by the New York Post)--that Paladino's remarks about gays occurred at a Brooklyn synagogue where women reporters were barred from entry. Women on the upper floors of the synagogue then dumped water on the journalists. Morrison suggests that Paladino would have been unlikely to appear at an event that barred African American or Latino journalists, and he would have had an even bigger self-made mess on his hands had that happened. 
          More evidence that religions provide the easiest and most acceptable places to discriminate against women, so much so that it isn't even commented on. 

Monday, October 11, 2010

Religion and Violence

          I spoke last week at a conference at Cardozo Law School, where we celebrated the twentieth anniversary of the Supreme Court's leading case on the Free Exercise Clause, Employment Division v. Smith. Many religious believers have been critical of its holding that religious believers must follow the law. The following case from New Jersey, which was decided earlier this year, explains why Smith is good law.
S.D. filed for a restraining order against her husband in New Jersey because he had beaten her and forced her to have sexual intercourse against her will due to his dissatisfaction with her inability to cook acceptable meals for his houseguests. The couple was wed in an arranged marriage in Morocco in July 2008, when the bride was seventeen years old, and moved to New Jersey in August. On November 1, M.J.R. asked his wife to prepare three special meals for guests the next morning. Although S.D. arose at 5 to prepare breakfast, she was unsuccessful in cooking the three dishes, and there was no food when the guests arrived at 8. At 10, after the guests had left the house, M.J.R. entered S.D.’s room, told her he was going to punish her for her behavior, and pinched her flesh repeatedly for over an hour, leaving bruises on her flesh.
A similar incident occurred two weeks later, after M.J.R. asked his mother to prepare a dinner for guests because S.D. could not cook. After the dinner guests left, the husband took off his wife’s clothes, forcefully pinched her genital area and other parts of her body, locked her in the bedroom, and had sexual intercourse with her without her consent. A third episode of nonconsensual sex occurred a week later, and M.J.R. beat S.D. until she was able to escape through an open window. In all three instances, M.J.R. told S.D. that he was punishing her for her failures as a housewife.

Women in Religious Institutions Lack Employment Rights

          Courts frequently dismiss cases against religious institutions because they mistakenly believe the First Amendment prevents them from intruding on religious employment disputes. They have invented a "ministerial exemption" that prevents religious lawsuits from being heard by a jury.
Consider the case of Madeline Weishuhn, a mathematics and religion teacher at St. Mary's Elementary School in Mount Morris, Michigan. According to the opinion dismissing her lawsuit, Weishuhn’s contract was not renewed after the 2005-06 school year “after a series of employment-related incidents, none of which involved the subject of religion.” The incidents are not described.
Weishuhn is representative of what happens in ministerial exemption cases. The facts are not developed because the cases are dismissed on jurisdictional grounds. If the events at St. Mary’s Elementary School did not “involve[] the subject of religion,” then they should be considered in the courtroom, by a jury.
Michigan newspapers and Weishuhn’s attorney revealed the facts. A student told Weishuhn that a student from another school was being abused by her father. Weishuhn reported the information to the authorities as the Michigan statute about reporting child abuse requires and was fired for doing so. The Michigan Court of Appeals ruled that a parochial school teacher is not protected against retaliatory dismissal and the state’s Supreme Court refused review. According to Weishuhn’s lawyer, “I cautioned [the court], if you're going to [apply the ministerial exception to this case], be very careful because you certainly have to provide protection for these [employees] who are compelled to report under the law and are subject to retaliation, . . . What they are saying is that my client doesn't even have protection for that.”
The appeals court demonstrated the misinterpretation of the First Amendment that plagues the courts, commenting that although “it seems unjust that employees of religious institutions can be fired without recourse for reporting illegal activities, particularly given that members of the clergy, as well as teachers, are mandated reporters. . . . to conclude otherwise would result in pervasive violations of First Amendment protections.” In other words, churches enjoy constitutional freedom to retaliate against employees who report sex abuse, even though the law requires sex abuse reporting, and even though Weishuhn was a teacher (not a minister) who did not violate Catholic teaching.

The larger background to this story is the worldwide sexual abuse scandal in the Roman Catholic Church, in which at least 15,235 victims have been acknowledged by the church in the United States while others estimate that 100,000 victims were involved. Sexual scandals have hit other religious denominations, large and small, in numbers still unknown. If women’s and children’s rights are to be protected, the courts and the law must be on the side of the whistleblowers and not on the side of church autonomy to break the law. The courts need to start enforcing employment laws against religious institutions. 

Sunday, October 3, 2010

President a Secret Catholic?

          The latest rumor about President Obama's religion? He always carries a picture of Mary Help of Christians in his wallet. The source of this bizarre rumor? The First Lady, in comments made during a trip to Spain. The First Lady was visiting the home of the Salesian order of priests, and Mary Help of Christians is their patron saint. The First Lady said the first family of the United States has great devotion to the saint. 
          Is this a new shrewd tactic to counter rumors that the president is Muslim? And yet another reminder that it is a good idea to keep religion out of politics? 

No Religious Test

          Article VI of the Constitution includes a No Religious Test Clause: no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. As part of Article VI, the clause is part of the original constitution, preceding the First Amendment, which gets much more attention. At the time of the constitution's drafting, the no religious test clause set a brilliant and original idea of government. The clause contrasted with the history of European nations and the practice of the early states, where religion was a qualification for public office and the religion of the ruler reflected the religion of the majority. 
          President Obama's religion does not qualify or disqualify him for public office. Unfortunately, the president has been forced to spend considerable time describing and defending his religious beliefs. This week, the president described his Christian faith at a discussion that was supposed to focus on the economy:

"I am a Christian by choice" ...
"I came to my Christian faith later in life, and it was because the precepts of Jesus Christ spoke to me in terms of the kind of life that I would want to lead," Obama said. "Being my brothers' and sisters' keeper. Treating others as they would treat me. And I think also understanding that, you know, that Jesus Christ dying for my sins spoke to the humility that we all have to have as human beings."
Humans are "sinful" and "flawed" beings that make mistakes and "achieve salvation through the grace of God," the president continued, adding that we also can "see God in other people and do our best to help them find their, you know, their own grace."
"So that's what I strive to do," Obama said. "That's what I pray to do everyday. I think my public service is part of that effort to express my Christian faith."

          It is time for voters to stop focusing on whether Obama is a Muslim or a Christian. The House Republicans' new Pledge to America requires that every bill have a citation of constitutional authority. This is a good time for everybody to make a public pledge to Article VI of the constitution, citing and defending the proposition that religion is not a qualification or disqualification for public office.