Bahai News - Notes on Church-State Affairs Notes on Church-State Affairs.

Magazine: Journal of Church & State, Spring 2000

NOTES ON CHURCH-STATE AFFAIRS

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AFGHANISTAN

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.

ALGERIA

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.

BULGARIA

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 facilities.

BURUNDI

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.

CANADA

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.

CHINA

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.

On 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.

The 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.

COLOMBIA

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.

COMOROS ISLAND

Two 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.

EGYPT

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.

The Egyptian 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.

FRANCE

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.

GEORGIA

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

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.

After a 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 people.

GREECE

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 leader.

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 closure.

INDIA

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 31 December.

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.

Indian 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 deaths.

INDONESIA

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.

IRAN

A 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.

In 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 ones.

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.

ISRAEL

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.

At 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.

JAPAN

Prosecutors 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 Matsumoto).

KUWAIT

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.

NIGERIA

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.

C.O. 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.

PAKISTAN

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.

ROMANIA

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.

Russia

On 23 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, Western Siberia.

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 AFRICA

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

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.

TURKMENISTAN

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 are sanctioned.

UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

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 Assembly.

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.

UNITED STATES

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 2000.

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 decision.

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 again.

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 years.

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."

Defenders countered 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 possible lawsuit.

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.

The American 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 facilities."

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' meeting room.

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.

The 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.

The 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."

The 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."

Senator Robinson, however, complemented his fellow legislators for passing the resolution. "God wants the Ten Commandments," stated Robinson, "That's where we came from."

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 repeated vandalism.

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 position.

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 classrooms.

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.

In 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 majority whim."

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."

A situation 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 the club."

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 enforced.

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 beards.

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.

However, state 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.

On the 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."

In 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.

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By David W. Hendon and Donald E. Greco


©Copyright 2000, Journal of Church & State

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