Civil Rights » ADL Blogs
September 6, 2016

America’s Religious Freedom Safeguards Advance Pluralism

BurkiniOver the last month how nations address religious garb has been making the news.  So-called “’Burkini’ Bans” enacted by 30 French municipalities are causing controversy. These bans adopted in part to be “’respectful of good morals and of secularism’” prohibit “a wide range of modest dress” at public beaches, including the Burkini which is a full-body bathing suit worn by observant Muslim women who follow Islamic modesty codes.  France’s top French administrative court and other lower courts have suspended these bans, but the prime minster continues to stand by them and public opinion on the issue is divided.  In Canada, the Royal Mounted Police recently announced that observant Muslim Mounties may wear hijabs.  These controversies and developments provide an opportunity to examine how the United States approaches religious freedom issues.

From its founding, the United States aspired to safeguard religious freedom for all, which was truly revolutionary.  This aspiration, however, does not mean that our nation has an unblemished record of religious inclusion.  Although there are countless examples of individuals and communities throughout our history embracing persons of other faiths, America has an ugly history of religious intolerance and issues of religious discrimination persist.  But unlike many other nations, in the United States there are formidable and effective laws prohibiting religious discrimination and requiring accommodations for the religiously observant.

The right to freedom of religion is so central to American democracy that it was enshrined in the First Amendment to the U.S. Constitution. That Amendment protects religious freedom in two ways.  Our Free Exercise Clause protects the autonomy of houses of worship from government interference and empowers all individuals with the right to follow any faith or no faith.  Our Establishment Clause separates government from religion by prohibiting official advancement, endorsement or coercion of religion.  Furthermore, Article VI of the Constitution prohibits religious tests for public office.

During the 20th Century, the federal courts and Congress applied these principles to the States and to private conduct.  The 1964 Civil Rights Act prohibits religious discrimination in employment, housing and public accommodations.  Indeed, its workplace protections require employers to reasonably accommodate the religious practices and observances of employees.  And today, virtually all state and local anti-discrimination laws also prohibit religious discrimination, as well as require religious accommodations in the workplace.

So in the United States, a municipal law such as the ones in France targeting religious observances or practices, including wearing modest dress at the beach, would be patently unconstitutional and would violate federal, state or local laws.  And, generally speaking, the burden is on a public or private entity to justify why a religiously observant person cannot wear a hijab, yarmulke, turban or cross in the workplace or public accommodations, including restaurants, stores, theatres or recreational areas.

For instance, in 2015 the U.S. Supreme Court ruled that a major department store’s “dress policy” was an insufficient reason not to a hire a Muslim woman who wore a headscarf for religious reasons.   And in 2013, a federal agency that enforces the 1964 Civil Rights Act resolved a case with a national fast food franchisee for an observant Christian woman whose religious beliefs prohibit her from wearing pants.   Under the settlement, she would be permitted to wear a black skirt instead of black pants as normally required by the employer’s dress policy.

Furthermore, in America there are strong religious freedom safeguards even within institutional settings.   In 2014, the U.S. Supreme Court struck down an Arkansas Department of Correction “no beards policy,” which prohibited a Muslim inmate from wearing a short beard.  The Court found that the safety and security issues raised by the Department were insufficient to justify the policy under federal law.  And just this year, after a federal court initially ruled in favor of a Sikh U.S. Army Captain, the Army granted him the religious accommodation of wearing a beard, turban, and uncut hair.

Also, it is common for the religiously observant to be accommodated without the force of law.  For example, at 2016 Rio Olympic games it was a non-issue for American fencer Ibtihaj Muhammed to compete wearing a hijab.  Rather, her winning a bronze medal was celebrated in the United States and beyond.

American fencer Ibtihaj Muhammed

American fencer Ibtihaj Muhammed

Although religious bias cannot be legislated away, these legal proscriptions have been an invaluable tool for successfully integrating American society because over time limitations on conduct can shape attitudes.  Legal prohibitions on religious discrimination send the resounding official message that unequal treatment based on faith is unacceptable.  Their mandate of equal access to the work and marketplace brings together people from diverse religious beliefs and traditions.  Through daily interactions with work colleagues, vendors, customers—and yes, even beach-goers– most people come to realize that they have much in common with persons they once considered “the other” and learn to accept and value differences.

Our nation’s robust religious freedom protections are exceptional and distinguish America from numerous countries around the globe.  They undoubtedly have been a cornerstone for creating a truly pluralistic and welcoming society.

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August 17, 2016

Texas Attorney General Wrongly Approves Courtroom Prayer

Texas AG LogoOn August 15, the Texas Attorney General issued an opinion which found that a county judge’s practice of opening his daily courtroom proceedings with prayer is constitutional.  The opinion was issued in response to a request by State Commission on Judicial Conduct (“Commission”), as well as  the Lieutenant Governor.   It misconstrues the law and undoubtedly will lead to religious coercion in  the Judge’s courtroom.

Wayne L. Mack, a Justice of Peace in Montgomery County, established a volunteer chaplain program that invites “’all religious leaders of any faith in [his county] to participate.’”  On a daily basis, a volunteer chaplain is “invited to ‘give a brief prayer during the opening ceremonies’ of the Justice of the Peace’s court proceedings.”  Furthermore, “‘[n]o guidance is given about the tone or content of the prayers.’”

In opposing this practice, the Commission referred the Attorney General to a U.S. Court of Appeals for the Fourth Circuit decision invalidating opening courtroom prayers.   Failing to cite one decision to contrary, the Attorney General opinion instead erroneously relies on U.S. Supreme Court legislative prayer decisions to validate the courtroom prayer practice.

These legislative prayer decisions, however, are a narrow exception to the First Amendment’s Establishment Clause.  They are based on a long tradition of opening prayer before state legislatures, but there is no such tradition in American courtrooms.  Indeed, the Court of Appeals decision cited by the Commission rejected an  equivalence between legislative and courtroom prayer because “’for the judge to start each day with a prayer is to inject religion into the judicial process and destroy the appearance of neutrality.’”  And because litigants are required to be present in court, the risk of religious coercion is much greater than in the context of a legislative body.   Furthermore, even under the Supreme Court’s most recent and overly broad legislative prayer decision, a prayer practice cannot result in a ““pattern of prayers that over time denigrate, proselytize, or betray impermissible government purpose.”   No such limitation exists in Judge Mack’s courtroom.

According to the Attorney General Opinion, persons who are required to appear before Judge Mack will not be subject religious coercion because “ ‘the bailiff provides an opportunity for individuals to leave the courtroom during the prayer and explains that participation in the prayer will have no effect on the decisions of the court. ‘”

That policy is grossly unrealistic and is of little comfort to prospective litigants before Judge Mack.  Rather, as correctly articulated by the Commission in its request for an Attorney General opinion on this issue:

Objectively, it would appear axiomatic that anyone who would dare to leave the courtroom upon this announcement and return after the prayer when the judge is present is being placed in an untenable position. By exiting and then returning to the courtroom, the litigant runs the risk that he or she will possibly be noticed by the judge as having left the courtroom during the prayer and held up to ridicule, denigrated, or retaliated against by the judge or by the community for implying a rejection of the judge’s Christian religious beliefs.

At the same time, those who remain silent and choose to stay in the courtroom may be subjected to a court-sanctioned prayer and governmental endorsement of a religious belief other than their own, in violation of the Establishment Clause. The United States Supreme Court specifically addressed the dangers of this kind of endorsement, which “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

In our nation’s courts, the Constitution demands that all persons be treated equally before the law regardless their faith.  The Attorney General’s approval of this courtroom prayer practice threatens to undermine this critical principle.   This unfair and exclusionary practice endorses and coerces religion in clear violation of the Establishment Clause.  It should be struck down by a federal or state court.

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August 9, 2016

Key Supporter Of After-School Religious Clubs Ironically Says Satanic Temple Can Be Barred 

Recently, The Satanic Temple announced that it plans starting after school clubs for the coming school year and sent letters to a number of public school districts advising them of its intentions.   Under a 2001 U.S. Supreme Court ruling, K-12 public schools must allow these clubs if they allow secular community groups to use their facilities.  But a key supporter of the 2001 decision and after-school access for Christian “Good News Clubs” erroneously disagrees.

Wikipedia images

Wikipedia images

In its Good News Clubs v. Milford Central School decision, the Supreme Court ruled that public schools must treat religious and secular community groups on the same terms and conditions in after-school access to facilities.  So if a school allows a secular group to use its facilities, it must do the same for religious groups.

Firmly believing that providing after-school access to religious organizations constitutes unconstitutional endorsement of religion, ADL in 2000 filed a friend-of-the-court brief with  the U.S Supreme Court opposing such access. However, this decision remains the law of the land.  Fifteen years later, numerous Good News Clubs operate in our nation’s public elementary and middle schools.

Liberty Counsel, a self-described Christian ministry “dedicated to advancing religious freedom, the sanctity of life, and the family,” is an active defender the 2001 decision and legally represents Good News Clubs across the country.   But it now erroneously claims that public schools can bar The Satanic Temple clubs, which Liberty Counsel characterizes as “not legitimate,” while permitting Good News and other religious clubs.   The schools would be wise not to follow this advice. They are constitutionally barred from determing whether a religion is “legitimate,” and picking and choosing among religions.  Rather, they can either allow or deny all community groups both secular and religious.

This issue is a clear reminder that religious freedom in America is for all faiths and why the Good News decision remains problematic.  The introduction of organized religious activities in public schools is religiously divisive and risks religious coercion.  For these reasons, ADL believes that constitutionally- mandated separation of church and state must be most robust in our nation’s public schools.  Although this belief may be distasteful to some, this position is not one of hostility towards religion.  Rather, it reflects a profound respect for religious freedom and recognition of the extraordinary diversity of faiths and religious beliefs represented in our nation’s public schools.

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