Bahai News - Notes on Church-State Affairs
Notes on Church-State Affairs.
Magazine: Journal of Church & State, Spring 2000NOTES ON
Muslim hijackers took an India Airlines plane to Afghanistan in
December but received no aid from Taliban authorities. Wakil Ahmed
Muttawakli, the Taliban foreign minister, said that what the hijackers were
doing was against Islam. The Taliban allowed Indian negotiating teams to
come to the airfield near Kandahar, the spiritual center of the Taliban,
where the plane was located.
A gunman killed Abdelkader Hachani, a senior
leader of the opposition Islamic Salvation Front. President Abdelaziz
Bouteflika denounced the killing and promised to find the perpetrator.
President Bouteflika had promised to protect Islamist politicians and
rebels who supported his plan for peace in this conflict-ridden country.
He had reached a truce with the Islamic Salvation Army, the armed wing
of the Islamic Salvation Front, last June. Bouteflika said the killing
would aggravate the country's crisis.
On 2 February, the Bulgarian Parliament approved three draft versions
of a new law on religion. The draft prepared by the government's
Directorate of Religious Affairs is the most likely version to serve as
a basis for a consolidated draft. All three drafts give the Bulgarian
Orthodox Church a special status. The drafts give mayors and the
Directorate of Religious Affairs broad authority in approving worship
Roman Catholic Archbishop
of Gitega, Simon Ntamwana, said that the negotiations aimed at dealing
with the Hutu-Tutsi conflict are not moving fast enough. The process has
been at a standstill since the death of former Tanzanian President
Julius Nyere in October 1999. The Organization of African States
appointed Nyere as the chief mediator.
Pardeep Nagra, a Sikh who is a light-flyweight boxer, sued and won
the right to compete without shaving off his beard. The Sikh religion
forbids shaving. The rules of the Canadian Amateur Boxing Association
required that boxersbe clean-shaven on the grounds that contact with
facial hair could inquire the opponent. Though Nagra won the court case,
he lost the boxing match in a seven to three decision.
There was a wave of arrests of underground
church leaders in November and December 1999. According to one report
103 were arrested. These included Protestant house church leaders and
leaders of the underground Roman Catholic Church. Stanley Roth, United
States Secretary of State for East Asian and Pacific Affairs, said that
the Chinese human rights record went backward in 1999.
Epiphany (6 January) the Patriotic Association of Chinese Catholics
installed five new bishops loyal to Beijing rather than the Vatican. The
action was a direct challenge to the pope, who regularly consecrates new
bishops on this day. This year he elevated twelve new bishops and
stressed in his comments that they represented the church's
"universality." Vatican spokesman Joaquin Navarro-Valls expressed
"astonishment and disappointment" at the Chinese action.
Chinese government experienced an embarrassment for its policy toward
Tibetan Buddhism when the Karmapa Lama, age fourteen, fled to India. He
arrived in Dharmasala on 5 January after an eight-day trek over the
Himalayas. He was ordained in 1992 with the approval of both Beijing and
the Dalai Lama. Until his flight, the government had praised him as an
example of a "patriotic" lama. On 16 January, government authorities
presided over the enthronement of two-year-old Soinam Puncog as the
seventh Retina Lama. The ceremony took place in Johkang Temple in Lhasa,
Tibet. The government had overseen his selection with great care. The
government of the Dalai Lama said it would not accept the choice.
At the end of January, the Chinese government declared Zhong Gong, a
movement that combines meditation and exercises like the better known
Falun Gong (or Falun Dafa), "an evil cult." Under Chinese law cults are
illegal. There was a report that the government closed more than a
hundred Zhong Gong centers.
Guerrillas apparently killed two Pentecostal pastors on 23 January.
There was a report that a Nazarene pastor was kidnapped the same day and
was being held for ransom.
young men, Taki Islam and Hassan Ali Toibibou, who were convicted of
anti-Islamic activity last October for possession of the Jesus video,
were "provisionally" released from jail. Toibibou left the country along
with his pregnant wife. Islam and Toibibou did not know each other.
In December, President Hosni Mubarak issued
a decree relaxing a law that requires Christian churches to obtain
high-level government permits to repair or restore their places of
worship. Under the new decree local administrative authorities will
issue permits for work on both mosques and churches. The requirement of
a permit is new for mosques.
The decision of Coptic Christians in
Al-Kosheh to rebuild a church with no permit at all created tensions in
that town that led to violence. On 31 December, an argument broke out
between a Muslim street vendor and a Christian shopkeeper. Three days of
conflict led to twenty-one deaths. Coptic Bishop Wissa said that all
those killed were Christians. He also said that a church and fifty
homes, shops, and warehouses were burned in the village of Awlad Toq
West. Egyptian government officials accused Bishop Wissa of sending
negative reports to human rights groups. On 7 February, state security
prosecutors filed charges of attempted murder against Father Gabriel
Abdul Masih for allegedly leading a mob in the disturbances at
Al-Kosheh. Released on bail, he said that he was not even in the town on
the day of the riot but instead was talking to regional officials in an
effort to get intervention to stop the violence.
Parliament voted on 27 January to make it easier for Muslim women to
divorce their husbands. Under previous legislation a woman could divorce
her husband if she had witnesses in family court to prove that her
husband had treated her badly. Now women have the option also of asking
for a divorce based on simple incompatibility. She would have to wait
six months if she has children or three months if she does not. If she
still wants a divorce, then the judge must grant it. She would, however,
have to return all money, property, and gifts acquired during the
marriage. She would receive no alimony. Divorce is very easy for men,
but the new law added a requirement that men file a divorce paper.
Previously men could divorce a wife simply by saying, "I divorce you,"
three times. Some Muslim deputies opposed the change, but others voted
for it. Some pointed out that even the Prophet Mohammed had allowed an
unhappy woman to divorce her husband against his will although she had
to return her dowry.
On 16 December,
the French Senate unanimously approved a draft law against "cults."
Article One of the law allows the government to dissolve groups that
have been found guilty at least twice of criminal offenses and that are
"regarded as a trouble for public order" or are "regarded as a major
danger for human personality." The discussion made it clear that the
latter phrase included those groups cited in a 1996 list of "dangerous
cults." On 8 February, a government report to Prime Minister Lionel
Jospin called for the banning of the Church of Scientology, which it
labeled as "totalitarian." Mayor of Paris Jean Tiberi said that he
wanted to create exclusion zones to prevent "cult" recruiting near
locations such as schools. He said he would present legislation to the
National Assembly that would also ban "cult" advertising near
establishments considered vulnerable.
Pope John Paul II visited Georgia for two days in November. President
Eduard Shevradnadze hailed the visit as recognition of his country as a
"democratic and tolerant state" and said it would speed Georgia's
"integration into Europe." The visit was controversial within the
Georgian Orthodox Church because of growing hostility to ecumenism.
Patriarch Ilia II said that the pope's visit was merely political. When
the pope held mass on 9 November, no Orthodox priests attended.
Germany's Roman Catholic bishops voted on 23
November to no longer participate in Germany's system of counseling
centers for women seeking an abortion. German law requires counseling
for women with pregnancies of fewer than twelve weeks before they can
have an abortion. Pope John Paul II had criticized the fact that
Catholic centers gave certificates of participation that allowed
abortions. Defenders of the practice argued that the counseling at least
prevented some abortions. There are 1685 counseling centers in Germany
of which 264 had been run by the Roman Catholic Church.
decade of controversy, Germany dedicated a large site near the
Brandenburg Gate in Berlin to commemorate the Holocaust. Construction
will begin in 2000. Elie Wiesel spoke at the dedication and urged the
Bundestag to pass a resolution requesting forgiveness from the Jewish
The European Court of Human
Rights in Strasbourg ruled unanimously on 14 December that there had
been a violation of freedom of thought, conscience, and religion in the
case of Ibrahim Serif, a Muslim of Greek nationality. Greek courts had
convicted Serif' of' usurping the functions of a minister of a "known
religion" and of wearing the robes of a minister without being entitled
to do so. A number of worshipers at Friday prayers proclaimed Serif
mufti of Radopi in December 1990 in opposition to a government-appointed
mufti, and subsequently he spoke at religious meetings. The government
appointed its choice as mufti after the death of the previous mufti.
Such replacement appointments were standard practice, but two Muslim
deputies in Parliament then called for an election. Parliament, however,
passed a bill that provided for the government to appoint muftis as
standard practice. The European Court found that at least some Muslims
in the community supported Serif and that the Greek government could not
show specific disturbances that came from his speaking as a religious
On 31 January, a Greek court ruled that the closing of an
evangelical radio station (Channel 2000) under antiproselytizing laws
was illegal. The court said the station could resume broadcasting and
that the government would have to return confiscated equipment to Pastor
Lakis Begas. The station had operated for eleven years before its
On 24 December, hijackers
aligned with the Muslim rebels of Kashmir hijacked an Air India airplane
on a scheduled flight from Katmandu, Nepal, to New Delhi. They went to
Pakistan, then the United Arab Emirates, and finally Afghanistan. The
Taliban authorities in Afghanistan refused to recognize the hijackers as
representing a legitimate Muslim cause, but they did help arrange a
compromise to the crisis. They persuaded the hijackers to drop a demand
for $200 million and the body of a dead militant. They instead helped
broker a deal if three militants jailed in India were handed over to
them. The hijackers and the militants then had ten hours to leave
Afghanistan. The 150 people on the plane then flew back to New Delhi on
Also on 31 December, Hindu nationalists of the
Vishwa Hindu Parishad attached Chandra kat Shourie, his wife, son and
some friends. The attackers used sticks and beat them and reportedly
said, "Kill the Christians." Shourie is the nephew of Arun Shourie, a
journalist and member of the upper house of Parliament. The attack took
place in Madhya Pradesh. The police did not intervene.
authorities arrested Dara Singh and charged him with being the
mastermind behind the killing of Australian missionary Graham Staines
and his two sons in January 1999. Singh told police that he wanted to
teach Staines a lesson. He said he did not know that the two boys were
in the house when he set it on fire and that he was unhappy about their
Violence between Christians
and Muslims in the Maluka Islands (formerly the Maluccas or Spice
Islands) left thousands dead and hundreds of churches and mosques
destroyed. The violence has its roots in the influx of Muslim migrants
into what had been a predominantly Christian area. Chris Sahetopy, a
Christian member of the Maluku provincial assembly, called for United
Nations intervention, but Indonesian President Adurrahman Walid refused
to declare a state of emergency and ruled out foreign intervention.
About 90,000 Muslims rallied in protest in Jakarta. One speaker, Husin
Ali Habsy, said that unless President Walid acted, Muslims might send in
a force of 10,000 on their own.
clerical court sentenced Addullah Nouri, a high-ranking cleric, to five
years in prison for heresy on 5 December. The charge was based on
articles he wrote which allegedly challenged the Islamic system of
government. The ruling also closed his newspaper Khordad. Mr. Nouri is
popular with reformers. From prison he sent word that he thought his
sentence would actually harm the conservatives' cause.
preparation for upcoming parliamentary elections, conservatives on the
Council of Guardians eliminated 402 candidates from the ballot. These
included some of the prominent reformers. There were a large number of
reformers, and the conservatives did not feel they could not eliminate
them all. Thus, they concentrated on eliminating the best-known
On 5 February, thousands of clerics in the holy city of Qum
protested the publication of a newspaper cartoon that portrayed
hard-liner Ayotollah Mohammed Taqi Mebah Yazdi as a crocodile. In Muslim
culture the crocodile represents treachery. The protesters called for
the execution of Culture Minister Ataollah Mohajerani for allowing the
press too much freedom.
On 11 February, the Clinton
Administration condemned Iran for sentencing three Bahai men to death. A
court had convicted them for unspecified acts against state security.
White House spokesman Joe Lockhart said, "In all three cases, it is
clear that the individuals were arrested, charged, and sentenced to
death solely because of their religious beliefs." On 17 February, the
Iranian Supreme Court rejected the death sentences. The court did not
immediately announce an alternative sentence.
On 21 November, the Israeli defense forces
suspended Lieutenant Gamliel Peretz as a military instructor and said he
would be discharged from the army. A young female soldier had challenged
Peretz's use of an Orthodox morning blessing in which men thank God that
he has not made them women. Peretz rejected alternative blessings and
said, "The Reform and Conservative are not Jews." "The Reform and
Conservative," he continued "caused the assimilation of eight million"
and that this was worse than the Holocaust. Conservative and Reform
leaders expressed pleasure with the decision to suspend him.
Christmas, Chief Rabbi of Israel Meir Lau issued an edict banning
Christmas trees and crucifixes in hotel lobbies as offensive to Jews.
Some rabbis had wanted to ban all Christmas and New Year's celebrations,
but hotel operators convinced the Rabbinate to go with the more limited
ban that was proclaimed.
asked for the death penalty for Toru Toyoda and Kenichi Hirose and life
imprisonment for Shigeo Sugimoto for their involvement in the 1995 sarin
gas attack in the Tokyo subway by the group Aura Shinrikyo. The three
admitted the charge but said they were not responsible because they were
under mind control by Aura guru Shoko Asahara (real name: Chizuo
The Kuwait Parliament
voted thirty-two to thirty with two abstentions to reject a bill that
would have given women political rights. At present only men over
twenty-one who have been citizens for twenty years can vote or be
elected to office. The opposition came from Sunni Muslim and tribal
members of Parliament. The vote was a setback for Kuwait's emir, Sheikh
Jaber al-Ahmed al-Sabah, who favored the change.
The adoption of Sharia (Islamic law) in
several northern states fanned tensions in Nigeria. On 16 December, the
Christian Association of Nigeria (CAN) wrote the country's attorney
general asking him to challenge the adoption of Sharia in Zamfara State.
In January, Christians protested in Minna, the capital of Niger State,
paralyzing business for three days. In February clashes between Muslims
and Christians in Kaduna State took fifty lives. President Olusegun
Obasanjo convened an emergency meeting of the country's thirty-six
governors to discuss what to do about the violence.
Williams, general secretary of CAN, said that the organization was
working out a financing of secondary schools scheduled for return to
churches in the year 2000. The federal government began taking over
mission schools in 1970, but now they are reverting to the churches. The
government of Lagos State pledged that it would subsidize each student
whose school became Christian or Muslim. The arrangement is temporary
and will end once a system of fees paid by parents is established.
A Pakistani Christian, Shafik Masih, who
has been detained since May 1998 on charges of blasphemy, was acquitted
of the original charge but convicted of "lesser offenses against Islam."
The court sentenced him to eight years of hard labor and levied a heavy
fine against him. The charges originated in an argument with a neighbor
who said that Masih slandered Mohammed in the course of an argument.
The new government of Prime Minister
Mugur Isarescu voted to withdraw a draft law on religious denominations.
Many religious groups had opposed the bill, which placed restrictions on
minority religious communities.
November, the Constitutional Court made a significant reinterpretation
of the 1997 law on religion. That law distinguished between traditional
religions with full rights and religious groups that had been in Russia
less than fifteen years, which had fewer rights. Originally the
fifteen-year rule seemed to apply retroactively, but the new ruling says
no. Groups registered under the more liberal 1991 law will not have to
register again. The ruling came in the matter of a Jehovah's Witness
group in Yaroslav, Central Russia, and a Pentecostal group in Abakan,
Twenty-three traditional Christian communities
of the former U.S.S.R. had a conference at St. Daniel Hotel, part of the
complex of the Danielovsky Monastery, which is home to the Moscow
Patriarchate. The participants called for greater cooperation among
Christians and condemned xenophobia and nationalism. At the same time,
they outlined criteria for distinguishing between Christian churches and
"sects." They defined "pseudo-Christian sects" as those that do not
confess Jesus as God and Savior, who reject the doctrine of the Trinity,
who replace Scripture with other texts, and who reject baptism in the
name of the Father, Son, and the Holy Spirit.
South African President Thabo Mebeki refused to have a
one-on-one meeting with the Dalai Lama, who was in South Africa to
attend the Parliament of World Religions. The Sunday Independent
reported that Mebeki gave in to Chinese pressure to cancel a meeting
scheduled for 7 December. Li Peng, who visited South Africa the previous
month, reportedly told Mbeki that he should not meet the Dalai Lama.
Archbishop Desmond Tutu noted that Nelson Mandela had met with the Dalai
Lama and that Mbeki's not doing so was "sad."
Sudan's President Omar el-Bashir dissolved
Parliament on 12 December and declared a three-month state of emergency.
The move seemed to derive from a conflict between him and Sudan's
parliament speaker, Hassan Turabi. Turabi, an aging cleric, has worked
hard to make Sudan an Islamic state. There was some speculation that
el-Bahsir might soften his government's Islamic policies and open the
way to reconciliation with the Christian and animist south of the
country. There has been civil war for sixteen years.
Father Vram Gahzarian, a priest of the
Armenian Apostolic Church based in the Uzbek city of Samarkand, visited
Turkmenistan at the invitation of the Armenia ambassador to
Turkmenistan. The priest baptized a number of Armenians on property
rented by the Armenian embassy. The Armenian ambassador is trying to
influence the government to ease restrictions on the registration of
churches to allow the 32,000 Armenians in the country to have their
church recognized. Currently only the Russian Orthodox Church and Islam
UNITED KINGDOM OF GREAT BRITAIN AND
Despite some continued sectarian quarreling,
Britain ended direct rule of Northern Ireland on g December with a
series of meetings and treaty signings in Belfast, Dublin, and London.
Authority for local affairs now rests with the Northern Ireland
The Charity Commission denied the Church of Scientology
charitable status. The commission said that Scientology does not advance
"moral and spiritual welfare" and that it was not really established
"for the advancement of religion."
The Muslim News reported that
religion would be included as a category in the 2001 census. Muslims
have advocated including religion in the census so that they will be
considered in government planning and resource allocation. They had
expected an announcement about amending the Census Act of 1920 in the
Queen's speech, but there was none and they were disappointed. Secretary
of the Cabinet Sir Richard Wilson wrote the Muslim News that the cabinet
had agreed in principle to do it and that the government would introduce
the necessary amendment.
Courts and Legal Matters: Separation of Church and State: School Prayer
and the "Hall Mary": Santa Fe is a small town in southeastern Texas.
Prior to 1995 whenever an important event took place in town, like a
high school football game, it was customary for a student chaplain to
offer a prayer at the event. However, a group of parents objected to
these religious observances taking place at public events. The school
district responded by adopting a new policy regarding the saying of a
prayer before football games. Under the new policy students are allowed
to decide whether they wanted to have a religious message delivered at
events such as football games. If the students decided in favor then a
student would also be elected to deliver a prayer or message of his or
her own choosing. This election is conducted on a yearly basis and the
outcome of the election governs for the entire succeeding year.
This new policy was still objectionable to some residents of Santa
Fe. Before the new policy was even implemented legal action was
instituted. The plaintiffs in the litigation were granted permission by
a lower court judge to list themselves as "Does," in other words, to
file the suit anonymously. This unusual procedure was allowed because
other parents in the community received death threats after expressing
concern about the school district's policy. The path of litigation led
to the Supreme Court of the United States. Oral argument in the case of
Santa Fe Independent School District v. Doe was heard on 29 March
Tony Mauro in a special report for The Freedom Forum (29
March 2000) interpreted the Court's reaction. A majority of the Court,
judging from the questions and comments made by various justices during
the proceedings, seemed to disfavor the policy of allowing student-led
prayer at high school football games, at least as it occurred in this
instance in Santa Fe, Texas. Eight years ago in Lee v. Weisman, the
Court found that clergy-led prayer at high school graduation ceremonies
violated the Establishment Clause of the First Amendment. This case
clearly has elements that make it distinguishable from the Weisman case,
i.e., the prayer is delivered by a student not a member of the clergy,
attendance at football games is not compulsory as graduation may be
deemed to be (thus students are not a "captive audience"), and the
decision to have the prayer uttered is not dictated by school officials
but instead chosen by the students themselves. Nonetheless, to the
extent it is possible to predict how any particular justice will vote
from his or her comments during oral argument, a dangerous practice at
best, the Santa Fe School District should be prepared for an unfavorable
As Mauro reports, the school district's attorney, Jay
Sekulow, argued that school board policy was neutral and without the
kind of official endorsement or involvement that has been problematic in
past school-prayer cases. Sekulow maintained, "It's a hands-off policy.
The individual student is the speaker." He argued that this is quite
different from having a state official or a person selected and directed
by a state official delivering a religious message or prayer.
Furthermore, to forbid this expression by a student on behalf of the
students was to unjustly interfere with the student's freedom of speech.
However, when pressed, Sekulow acknowledged that there would be a
certain amount of control of content exercised by school officials. For
example, if foul language were used in one of these pre-game messages,
school officials would take control to make sure it did not happen
Despite Sekulow's argument, Justice Ruth Bader Ginsburg
expressed doubt about the neutrality of the school board policy. She
reasoned that if the policy were truly neutral one would expect that,
over time, a wide range of different positions, views, and beliefs would
be expressed. However, she questioned whether it was reasonable to
believe that the policy adopted by the Santa Fe School District would
indeed lead to "the full spectrum of speech" to be heard at Santa Fe
High School football games? Accordingly to Mauro, "Justice Brever also
voiced concern that the process would tend to exclude minority religions
from ever being represented in the invocations." Texas Attorney General
John Cornyn, who, at the direction of Texas Governor George W. Bush,
filed a brief in support of the Santa Fe Independent School District,
directed the Court's attention to the fact that the policy had never
taken effect. Therefore, according to Cornyn there was no way to know
what kind of invocations or messages would be expressed over the
Nonetheless, several justices expressed concern that the
prayers or religious messages still would appear to be endorsed by
school officials. This, in and of itself, could be constitutionally
impermissible. Furthermore, religious minorities might well be made to
feel uncomfortable if not inhibited which adds a further troublesome
complication. Other justices seemed most concerned about the use of an
election to determine issues related to religious utterances in a public
school settings. This procedure lends itself to prayer by majority rule.
It is this kind of groupthink and majority dictate that provided the
political and philosophic impetus for ratification of the Bill of
Rights. Where in the policy adopted by the Santa Fe School District is
there protection for the rights of a minority who might wish respond to
or voice opposition to the religious message delivered by the majority's
designated representative? This becomes of particular concern when that
representative is elected pursuant to a procedure devised and endorsed
by the Santa Fe School Board.
Justice Sandra Day O'Connor
expressed particular concern about the propensity of the school board's
policy to effectuate and perpetuate the dominance of the majority's
religious views. She made reference to the case of the Board of Regents
of the University of Wisconsin, et al., v. Scott Harold Southworth et
al., in which the Court rendered a decision the previous week. In a
somewhat surprising unanimous decision the Court in the Southworth case
held that the University of Wisconsin's policy of allocating a portion
of mandatory student activity fees to fund various campus activities and
groups was constitutional because it was content neutral. However, the
Court disapproved of that part of the university policy that allows any
particular group to either receive or be refused funds based on student
referenda. The Court cautioned against making the right to free speech
reliant upon consent of the majority. Justice Anthony Kennedy's comments
during oral argument in this case may be quite telling considering the
fact that he authored the Court's opinion in the Southworth case.
Kennedy stated during argument in the Santa Fe School District case that
he could envision an election campaign in which one student would
promise prayer at football games and another would not. "That is the
kind of thing our establishment clause wants to keep out of schools,"
said Kennedy. "The election thing doesn't work."
Several of the
justices were quite pointed in their concerns. Justice David Souter
noted that no matter how neutral the policy appears to, be on its face,
the fact of the matter is "the school provides the forum and requires
the students to sit there while a prayer is going on." Justice Stephen
Breyer blatantly expressed his skepticism about the policy of the Santa
Fe School District. "The school district has figured out a way to have a
prayer," stated Justice Breyer. While perhaps less pointed in their
comments, a majority of justices seemed concerned that the policy might
simply be a way for the school district to do indirectly what it
couldn't do directly. In other words, the new policy was but a clever
device by which the school district could continue its pre-1995 practice
of promoting prayer at school functions without appearing to do so.
Whether the repartee that took place during oral arguments proves to
be a harbinger of the Court's ultimate decision is yet to be seen.
Aiding Children or Establishing Religion?: As reported by The
Associated Press (31 March 2000), the state of Illinois recently faced a
conundrum regarding the Establishment Clause. The 1999 law gives parents
a tax credit for expenses related to sending their children to school.
The credit takes effect in the 2000 tax year. Under the law parents can
claim a 25 percent tax credit on their Illinois state tax return for
school expenses, such as tuition and book fees, that exceed $250. The
credit cannot exceed $500.
The law, on its face, applies to all
parents of schoolchildren and thus presumably is intended to help all
parents who have school age children. However, opponents argue that
public schools have minimal book or lab fees. Therefore in actuality the
benefits of the law will go to families that use private schools. These
schools most often have a religious affiliation. Therefore, critics
argue, the effect of the law is to lend public finance support to Roman
Catholic and other religious schools. This, they argue, violates both
the U.S. Constitution which prohibits the "establishment of religion" as
well as the Illinois Constitution. The state constitution, opponents
maintain, does not allow requiring people to participate in a religion
or using public money for religious purposes. Furthermore, opponents
maintain that the law diverts money that would otherwise be used to
improve public schools.
The National Education Association and
nine other groups along with five individual citizens sued in state
court to challenge the validity of the law. "The taxpayers are compelled
to pay part of the cost of parents who choose private education," said
John West, a Washington, D.C. attorney for the plaintiffs. "The crux is
the taxpayers have no choice in the matter."
that the U.S. Supreme Court has approved some tax credits and that
Illinois court rulings have said state guarantees should be interpreted
the same way as the First Amendment's protection. Furthermore, argues
Assistant Attorney General John Brunsman, this law provides a financial
benefit to parents, not schools, private or otherwise. He pointed out
that at least four other states have similar laws that have withstood
legal challenge. An Institute for Justice attorney, representing twelve
families, added that since the Illinois law applies to all parents it
does not give preference to private schools or any other kind of school.
It provides financial aid to all parents of school age children without
preference or exclusion.
The case was argued in front of Sangamon
County (IL) Circuit Judge Thomas Appleton. The judge took the ease under
advisement and has yet to render his decision. However, he may have
provided some insight into how this ease will be decided in the
questions he asked of counsel during the proceedings. Among other
things, Judge Thomas asked whether money that remains in a private
citizen's pocket as a result of a tax credit should even be considered
to be "public money." He also asked how a tax credit for parents could
be unconstitutional when property tax and income tax exemptions for
religions groups are not.
In addition, the judge queried, "How
can you make the argument that $500 is spent on religion as opposed to
calculus?" Plaintiffs' attorney responded by pointing out that any
public money that a private citizen is given to spend on private
schooling fees frees up private dollars to be spent for religious
purposes. The effect of the tax credit therefore is to provide financial
aid to religious schools.
Ten Commandments v. First Amendment:
Jeremy Learning, writing for the First Amendment Center (3 March 2000),
points out that "the call by religious groups and conservative
politicians to display copies of the Ten Commandments in government
buildings, most notably schools, continues to ring loudly in state
legislatures and local governing bodies. Legislators in Iowa and
Mississippi have joined several other states in urging passage of Ten
Commandments bills, and a county commission in North Carolina has
already posted the religious codes in public buildings and is facing a
A proposal sponsored by fourteen Iowa State
Senate Republicans and supported by the Senate majority leader, states:
"The Ten Commandments contain fundamental legal principles that provide
a basis for the system of law, justice, and social order in Iowa and the
United States and the Iowa Senate finds that the success of this nation
and this state will rest on citizens' ability to govern themselves
according to the Ten Commandments." The bill to implement the proposal
would require that the Ten Commandments be prominently displayed in the
Iowa Senate chamber and encourages doing the same in all government
structures including all public school classrooms.
Civil Liberties Union quickly attacked the proposal as an attempt to
establish a state religion in violation of the Establishment Clause of
the First Amendment. According to Ben Stone, executive director of the
Iowa Civil Liberties Union, "The Iowa Senate chamber belongs to all the
people of Iowa, not just the senators who use it." Stone continued, "If
some senators want to promote religious doctrines, let them form a club
and do it as private citizens."
State Senator Stewart Iverson, on
the other hand, feels that the presence of the Ten Commandments in the
State Senate Chamber would instill civility among the lawmakers and
certainly could not do any harm.
Meanwhile in Mississippi, State
Representative Wanda T. Jennings is promoting legislation that
proclaims, "The organic laws of the United States and the constitutions
of every state, using various expressions, recognize God as the source
of the blessings of liberty." Therefore, continues the bill, the state's
school districts "may authorize the display of the Ten Commandments in
classrooms and in other public areas of school buildings and
A different permutation of this controversy has
arisen in an eastern North Carolina county. The Wilkes County Board of
Commissioners last week rejected a request by a resident for placement
of some Buddhist precepts alongside copies of the Ten Commandments that
have been posted in three county courtrooms and the commissioners'
Deborah Ross, executive director of the ACLU of
North Carolina, opined, "What they have done is dearly unconstitutional
and we have potential plaintiffs in Wilkes County," Ross said. "The
Supreme Court has already decided these types of actions are improper;
so the constitutionality of the situation is beyond dispute. This is the
same song and dance that comes up every time elections roll around--it
is a political strategy that is popular, but that is also
unconstitutional." Ms. Ross indicated that legal action challenging the
action of Wilkes County Board of Commissioners was likely.
issue of posting the Ten Commandments and religious education in general
has gained attention in the state of Kentucky also. The General Assembly
of Kentucky has passed a resolution that would require public schools to
include lessons on Christian influences on America and mandate that a
large Ten Commandments monument be placed on Capitol grounds.
resolution introduced by Republican State Senator Albert Robinson states
that Kentucky education officials must "address the suppression and
censorship of American history regarding Judeo-Christianity's influence
on Colonial America and on the development of American law and civil
government by encouraging teachers and school administrators to post and
teach from historic displays of original documents which reflect this
history and which may also include the Ten Commandments as the rule of
colonial courts and precedent legal code upon which the civil government
and laws of the Commonwealth and the Republic were founded."
resolution requires that a Ten Commandments monument be placed on
Capitol grounds and concludes by requiring the state Department of
Education to allow the Ten Commandments to "be read, taught from, and
prominently displayed in the entry hall or foyer of Kentucky public
schools as well as classrooms."
Jeff Vessels, executive director
of the American Civil Liberties Union of Kentucky, said the resolution,
if' it becomes the law, "undoubtedly would entangle government with
religion, which is contrary to the First Amendment." Vessels added,
"Government is prohibited from promoting religion and the clear purpose
of the bill, and specifically the call for placing the monument on
capitol grounds, is to promote religion."
however, complemented his fellow legislators for passing the resolution.
"God wants the Ten Commandments," stated Robinson, "That's where we came
As reported by the Associated Press (14 March 2000),
Indiana Governor Frank O'Bannon has signed legislation that will allow
Indiana schools and other government units to post the Ten Commandments
in their buildings if they tire displayed with other historical
documents. The bill received overwhelming bipartisan support in the
Indiana State legislature.
In addition, the bill provides for
erecting a new monument at the Indiana Statheouse that, among other
things, will display the Ten Commandments, the preamble to the U.S.
Constitution, and the Bill of Rights. The new monument will replace a
previous monument that was erected in 1958 and displayed the Ten
Commandments. That monument had to be removed in 1991 because of
American Civil Liberties Union spokespersons
decry these state laws. They argue that governmental authorization and
endorsement of posting the Ten Commandments in public buildings is
contrary to the protections of the First Amendment Establishment Clause.
They cite the case of Stone v. Graham (1980) to support their
In Stone the Supreme Court found that a Kentucky law
that required the Ten Commandments to be posted in all public school
classrooms violated the principle of separation of church and state. The
Supreme Court ruled that the Ten Commandments are undeniably religious
in nature and could not constitutionally be placed in Kentucky public
The Free Exercise of Religion: The First Amendment
on Campus: On 22 March 2000, the Supreme Court decided unanimously in
the Board of Regents of the University of Wisconsin, et al., v. Scott
Harold Southworth et al., that the University of Wisconsin's policy of
allocating a portion of a mandatory $331 student activity fees to fund
student activities and groups was constitutional because it was
"viewpoint neutral." Three self-described conservative, Christian
students challenged the University of Wisconsin's fee system, saying it
violated their First Amendment free speech rights by requiring them to
help finance organizations whose views they oppose, such as the Lesbian,
Gay, Bisexual and Transgender Center. The Court disagreed on the basis
that the university, in its distribution of the funds, did not favor any
one group activity over any others. The university, without regard to
the ideology, beliefs, etc. of the groups that received the funds,
treated all equally.
The Court determined that the fee
requirement did not amount to "compelled speech," as was argued by
Southworth and his compatriots. Instead, the Court felt that the
university's policy and procedures constituted a key element of the
"important and substantial purposes of the university, which seeks to
facilitate a wide range of speech." Justice Kennedy, who wrote the
opinion for the Court, distinguished universities from labor unions and
bar associations. The Supreme Court has recognized the First Amendment
right of objecting members of those kinds or organizations to not be,
forced to fund speech or political activities they dislike.
Justice Kennedy pointed out in his opinion that it "is inevitable
that government will adopt and pursue programs within its constitutional
powers but which nevertheless are contrary to the profound beliefs and
sincere convictions of some of its citizens. The government, as a
general rule, may support valid programs and policies by taxes or other
exactions binding on protesting parties."
In a press release,
Legal Director of the ACLU of Wisconsin, Peter Koneazny, stated, "This
case was not so much about student fees as it was about the free
exchange of ideas." Matthew Coles, director of the ACLU's Lesbian and
Gay Rights Project, agreed. "If the university had lost this case, the
ability to form student groups and have robust debate on campus would
have been subject to majority whim," he said. "Today's ruling is a
significant victory for universities nationwide, for minorities
and--most of all--for our nation's time-honored commitment to the idea
that free speech has to mean freedom of unpopular speech."
Justices David Sourer, John Paul Stevens, and Stephen Breyer would
have gone even further in giving university speech broad First Amendment
protection. They would not have imposed a "cast-iron" requirement of
viewpoint neutrality in the distribution of student-fee money.
its decision, the Court disapproved of the idea of using a student
referendum to decide whether any particular group either receives or is
refused funds. The court cautioned against making the right to free
speech reliant upon consent of the majority. According to attorney
Coles, "If the university lost this case, the ability to form student
groups and have robust debate on campuses would have been subject to
The Freedom Forum (23 March 2000) reported
comments by representatives of various groups that had been following
this case closely. Robert O'Neil of the Thomas Jefferson Center for the
Protection of Free Expression and former president of the University of
Wisconsin stated, "The decision is very sensitive to what state
universities are doing when they collect these fees. It's a pat on the
back for state universities."
"The court recognized that it's
perfectly consistent with the First Amendment for a public university to
establish a public forum where student groups with all kinds of
views--conservative, liberal and in between--receive funding," said
Ralph Neas, president of the People for the American Way Foundation.
Beatrice Dohrn of Lambda Legal Defense and Education Fund said, "It's
a great day for freedom of expression when attempts to impose an
ideological veto on some speech are defeated."
unfolding at a college campus in Utah provides an interesting comparison
to the circumstances in the Southworth ease. Kendra Ruzicka is a student
at Utah Valley State College. She and a group of other students want to
form a chapter of the Eagle Forum Collegians on campus. The Eagle Forum
is a "socially conservative" organization. Utah Valley State College has
an antidiscrimination policy that applies to all campus groups. Under
this policy campus organizations must be open to all of the college's
students. Homosexuality is specifically included in the policy as not
being a basis for exclusion from membership in any campus club.
Ruzicka, through her attorney, requested that the college grant the
Eagle Forum Collegians an exemption from the school's antidiscrimination
policy. A letter was also sent to the Utah Attorney General's Office
asking for an opinion on the constitutionality of the college's policy.
As reported by First Amendment Center (24 March 2000), Ruzicka claimed
that the policy would violent the Eagle Forum club member's First
Amendment rights to freedom of association, speech, and religion.
Ruzicka argued that the policy would permit gays and lesbians to
infiltrate the group. Citing the Eagle Forum's constitution and bylaws,
Ruzicka's attorney said that the college's policy regarding gays and
lesbians could adversely "impact upon the freedom of association rights
based on political or religious beliefs of the students seeking to form
According to the groups website
(www.eagleforum.org/college/), Eagle Forum Collegians was formed in 1993
because "conservative students" need to be heard among the "liberalism,
multiculturalism, diversity, and radical feminism" on college and
university campuses. The group's constitution and bylaws state in part
that the organization owes its "existence to a Creator who has endowed
each of us with unalienable rights; and supports the United States
Constitution as the instrument of securing those God-given rights."
According to First Amendment Center, on 16 March, Utah Attorney
General Jan Graham informed Ruzicka that the school's policy on student
organizations was "based upon sound, compelling reasons" and would be
Furthermore, it was the opinion of the attorney general
that students' First Amendment rights are not being violated under the
college's policy. Assistant Attorney General David C. Jones stated in
his letter of response to Ruzicka that the policy "encourages and
fosters the expression, not the suppression, of ideas and speech by
allowing all students, not just a selected number of students, to
participate in UVSC clubs."
Ruzicka was thus advised that if
students want to form a chapter of the Eagle Forum on the campus of Utah
Valley State College, they must abide by the college's
antidiscrimination policy. If the members of the Eagle Forum refuse to
abide by the policy, the school would be within its rights to refuse to
sanction the group. Without being officially recognized by the college,
the group will not eligible for funds obtained from student fees and
distributed by the college's Inter-Club Council.
Hair Today -
Gone Tomorrow: Thirty-three senior New Jersey State Department of
Corrections officers and sergeants filed the action against their
employer. Some of these men have more than twenty years of service and
they all claim to be devout followers of Islam. What's their
grievance--pay, officer safety, working conditions, work schedules? No,
it is something more important than any of these issues. It is their
beards. Male followers of the Sunni Muslim faith are mandated to wear
However, as reported by the Associated Press (27 March
2000), as of 1 March 2000 if these men act in concert with their
religious beliefs they will be violating New Jersey's Department of
Corrections new dress and grooming policy. Prior to that time correction
officers were allowed to wear beards. However, six months after taking
office in March 1998, the new Department of Corrections Commissioner,
Jack Terhune, rescinded the existing policy. As of 1 March 2000,
corrections officers sporting facial hair had two choices under the
policy: shave or face departmental discipline and possible dismissal
from their jobs. However these thirty-three Muslim men filed a lawsuit
in U.S. District Court alleging that the new policy violated their civil
rights. More particularly, they claim that the Department of Corrections
regulation prohibits the free exercise of their religion and thus
violates their rights under the First Amendment to the Constitution of
the United States.
Just last term the U.S. Supreme Court refused
to review two federal court rulings in which a Newark (NJ) Department of
Police regulation prohibiting police officers from wearing beards was
struck down. The federal courts ruled the city did not have a
"compelling governmental interest" in banning beards that outweighed the
individuals' religious reasons for wearing one.
officials maintain that the Department of Corrections regulation is
distinguishable from the Newark Police Department regulation. The
Department of Corrections' policy includes provisions for both medical
and religious exemptions. The Newark Police Department regulation
provided medical exemptions for police officers with skin problems but
it did not provide for religious exemptions. Such an exemption is
provided for in the Department of Correction regulation.
other hand, as the corrections officers point out, these religious
exemptions are neither automatic nor long-standing. The policy requires
an officer to undergo an annual application process to obtain and
maintain an exemption from the "no-beard" regulation. Officer Samuel
Shelton Webster complained, "The implication here is that you must prove
to the DOC that you remain steadfast in your faith." Webster continued,
"Monitoring our religious life from year to year on the job is
harassment." The policy requires officers to provide the department's
Office of Employee Relations with a certificate from a religious leader,
which "states that the maintenance of a beard or some type of facial
hair is a necessary component of your faith."
Terhune and Mary
Cupo-Cruz of the department's Equal Employment Opportunity Division
denied claims of discrimination and violations of the employees' civil
rights. "The grooming policy applies to all custody staff. It is not
directed solely to Muslims or to black employees," they wrote. "Those
with medical exemptions must re-file each six months. Those who qualify
for religious exemptions must file annually. The fact is that medical
conditions change and persons may also change their religion."
mid-March, U.S. District Judge Faith Hochberg issued an order
prohibiting the state, the Department of Corrections, and Commissioner
Jack Terhune from enforcing the "hair today - gone tomorrow" regulation
pending a further hearing on the matter.
W. Hendon and Donald E. Greco
©Copyright 2000, Journal of Church & State
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