This was the case of the parochial school teacher who in addition to teaching on secular subjects also performed religious functions, Chery Perich, who was fired for threatening to file a lawsuit under the Americans with Disaiblities Act when she was not given her job back after returning from medical leave.  The religious employer argued that it was against its religious beliefs for a minister to sue the church, and that these things had to be handled within the church structure.

The issue presented before the Court was whether the anti-retaliation prohibition of the Americans with Disabilities Act (ADA) could be constitutionally applied to a religious association’s retaliatory firing of a parochial school teacher who taught secular subjects and also performed religious functions and was designated a commissioned minister.

The Supreme Court found that the Establishment and Free Exercise Clauses of the First Amendment bar ministers from bringing lawsuits against their churches in which the ministers claim violation of employment discrimination laws. In this case, the Court found that Perich was a minister within the meaning of the ministerial exception, and therefore the First Amendment required dismissal of her employment discrimination suit against her religious employer.

The ministerial exception gives religious institutions certain rights to control employment matters without interference from the secular courts. It does not, as the Court decision points out, affect criminal, tort, or contract law. So churches cannot use it to shield themselves from liability for criminal acts, negligent behavior leading to accidents, or breach of contract.  But it does protect churches from being hauled into court for religious decisions that have been made.

Some have tried to advance the theory that Perich had not fully pursued the administrative remedies available to her in the parochial system, but that would not have changed the outcome which hinged on the threshold issue of whether the ministerial exception applied to her. If the exception applied, the Court lacked jurisdiction.

Another misconception is that the Hosanna-Tabor decision somehow establishes the ministerial exception and adds something new. In reality, Congress specifically built an exception for religious organizations into Title VII of the Civil Rights Act of 1964. Title VII was enacted by Congress to prohibit employment discrimination on the basis of race, color, religion, sex, or national origin. (42 U.S. C. §§ 2000e-2(a)). Under the statutory exception, religious employers could prefer members of their own faith in making their hiring decisions.

The actual ministerial exception was born in 1972, when, in McClure v. Salvation Army, the U.S. Court of Appeals for the Fifth Circuit refused to hear a female minister’s gender discrimination claim. The court found that applying the provisions of Title VII to the employment relationship existing between a church and its ministers would therefore “cause the State to intrude upon matters of church administration and government” which would “result in an encroachment by the State into an area of religious freedom.”

The way it works is that courts in most Circuits rely upon a role-based or “primary duties test” to determine whether an employee is a minister within the exception, and whether or he she can bring suit under Title VII. Several circuits have adopted an approach that religious institutions should be able to choose who will perform certain spiritual functions. The first approach focuses on the employment relationship, while the second focuses on the right of churches to exercise their beliefs more freely.

Perich was, in many ways, the perfect “poster child” to challenge the ministerial exception. The case clearly involved a non-religious issue and for all the world, it looked like the church was looking for a way to fire her in a way that would be against public policy as applied to secular organizations and still avoid being hauled into court for violating the Americans with Disabilities Act.

In fact, the EEOC, the ACLU, and Americans United for Separation of Church and State (“AU”) rallied to Perich’s side. In its brief, AU argued that the ministerial exception did not entitle religious entities to discriminate or retaliate for reasons unrelated to religion, and that courts should determine whether an asserted religious justification for an action is pretextual.

In short, a church would therefore need to pass a two-prong test – first, it would have to demonstrate that its discriminatory rule was related to its religious beliefs; second, it would need to demonstrate that its action was not “pretextual.”

The AU brief gave some examples of what it meant to litigate on issues of discrimination that were not particularly related to a church’s doctrine. For instance, a Catholic Church could not be forced to hire a female priest, but an otherwise egalitarian church would not be permitted to fire a Sunday-school teacher when the pastor had a purely personal belief that “women should not work outside the home.”  The examples continued for several pages, permitting organizations to make discriminatory doctrinal rulings but not permitting local churches from acting in contrast to non-discriminatory denominational policies or practice.

Applying an Employment Division v. Smith style argument, AU argued that generally applicable employment laws should apply to churches unless there is a need to safeguard a constitutional right. Why they would appeal to this analysis is particularly curious. The Smith decision created a major problem for free exercise of religion by subjecting religious minorities to the rule of the majority even if it goes against the minority’s religious beliefs. (One can hope that the Court, in the near future, might see the wisdom of applying the Hosanna-Tabor analysis to individual religious liberty rights and re-establishing the Free Exercise Clause that was compromised in Smith.)

The AU brief is helpful in that it provides a concrete example of the depth to which the government and courts would need evaluate in order to determine whether church employment decisions were permissible or not.

Under the approach proposed by AU, church decisions would be open to scrutiny as to whether they were doctrinal or not, and the investigators would then need to go into the minds of the decision makers to see whether such decisions were made in good faith and not merely to achieve a favorable outcome for the institution.

As people often say, bad cases often make bad law and the Supreme Court had just such an opportunity to throw away the ministerial exception in this highly sympathetic case and effectively destroy the wall of separation of church and state by allowing the state entry into the inner workings of the church. Fortunately the Court saw the bigger issues involved and made the right decision.

However by ruling the way it did, the Supreme Court protected the right of a religious organization to select its clergy without government interference and avoided placing church doctrine under government interpretation. Civil magistrates will not be in a position where they are forced to determine which religious view, that of the clergy member or the church, is correct.

Church leaders are free to choose ministers who they believe will carry their message forward.

While most religious organizations sincerely strive to provide fair and equitable treatment to all employees, this does not mean that some religious organizations will not abuse the “ministerial exception” to make poor personnel decisions that could lead to costly litigation if they were secular organizations. But organizational decision makes should realize that they will ultimately answer to a Higher Power even if these cases may not be pursued in the civil courts.

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For more information on the ministerial exception and its history, I would recommend the Charleston Law Review article by Todd Cole, “The Ministerial Exception:  Resolving the Conflict between Title VII and the First Amendment.” The article is available online at http://www.charlestonlawreview.org/archive/vol4num4/Cole.pdf

The “Johnson Amendment” prohibits most church pastors from making declarations “in support of or in opposition to candidates for public office.” Is this limitation on freedom of speech constitutional?

One thing is clear – the electioneering ban is not rooted in Jeffersonian views of separation of church and state or the First Amendment which are silent on issues involving the interplay between tax-exempt organizations, including churches and charities, and the Internal Revenue Code. Under section 501(c)(3) of that code, churches and other charitable organizations are exempt from income tax and entitled to receive tax-deductible contributions from donors.

Instead, it is based on an agreement that non-profits make with the IRS. In order to obtain 501(c)(3) status, applying organizations must represent that they will not participate in any political campaign on behalf of, or against, any candidate for political office. A contributor to a church that does not sign up for 501(c)(3) status can still deduct those contributions from his or her income but if that contributor is audited, he or she has the burden of establishing that the church meets the qualifications of a section 501(c)(3) organization.

On October 2, 2011, as part of “Freedom Sunday” which is promoted by the Alliance Defense Fund, 539 ministers throughout the United States defied the IRS rule and identified where candidates stood on the issues and “where followers of Jesus Christ should stand.” ADF claims that before 1954 when the Johnson Amendment was passed, preachers could promote candidates from the pulpit and that the effect since then has been to “silence and chill the pastors.”

So far, it does not appear that the IRS has taken action to revoke the 501(c)(3) status of these churches. In fact, such cases are exceedingly rare. The U.S. Supreme Court has yet to address this issue head-on although a lower court, the District Court for the District of Columbia in Branch Ministries v. Rossotti (http://www.irs.gov/pub/irs-utl/branch_ministries.pdf) did find that the IRS could revoke the tax-exempt status of a religious organization that bought and published a newspaper ad in the New York Times and the Washington Post that specifically and clearly argued against a political candidate. The ad said, “Bill Clinton is promoting policies that are in rebellion to God’s laws.” The ad concluded, “How then can we vote for Bill Clinton?” At the bottom, the church was named along with an invitation for readers to make a “tax-deductible donation” to pay for the advertisement.

A church that loses its tax exempt status will operate like any other corporation for purposes of tax liability. They would be able to speak out freely but some contributors may be less inclined to donate if they cannot take the tax deduction.

If 501(c)(3) organizations were suddenly able to engage in partisan politicking, and donors were able to give on a tax-deductible basis, donors could ostensibly deduct currently non-deductible political donations simply by funneling these monies through churches. Churches would not only pass the collection plate for their religious mission, but churches would also be able to use these tax-deductible donations on behalf of particular candidates.

Large churches could bankroll entire political campaigns and receive favorable treatment from those who support them. Politicians could visit with church pastors and lobby them for their campaign support. The lines of mutual respect between church and state could be erased as churches become nothing more than overt political mouthpieces during campaign season.

Because of the tax advantages, it is not inconceivable that churches would become a primary venue for gathering votes as political goals were interwoven with spiritual teachings. A politician who ignored this new reality would be at a distinct disadvantage.

In response, many congregations might, as a matter of policy, refuse to allow the politicking from their pulpits but may perceive that they lose the favor of politicians who receive their support elsewhere.  In churches that permitted politicking, congregants of different political persuasions than their clergy might feel alienated and leave.

As it now stands, churches and charities are welcome to speak truth to power on the issues that matter – from opposing human trafficking, to lobbying for workplace accommodation for religious employees, to pursuing morality and justice. Religious organizations just cannot support or oppose particular candidates or political parties. This is a good thing.

Amy Tarkanian, the state GOP chairwoman told The Associate Press that she has asked the Republican National Committee to weigh in on whether the religious voters should be accommodated by moving their voting to Saturday night, or moved forward to February 2.

Casino titan and Republican party supporter Sheldon Adelson has raised concerns about the scheduling of the February 4, 2012 caucus, which falls on Saturday, or the Sabbath as celebrated by orthodox Jews, Seventh-day Adventists, and members of a few other religious groups.

The proposed changes would allow religious voters who observe the seventh day as a holy day to vote on an alternate date while most Nevada Republicans would be requested to caucus from 9 a.m. to 3 p.m. on February 4.

If you support religious accomodation for Nevada GOP voters who observe the Sabbath on Saturday, contact the GOP with a message of thanks and support for the decision at http://www.nvgopcaucus.com/contact

Here is a sample message:  ”Just wanted to thank you for considering accommodating members of the GOP whose religious beliefs require that they rest on Saturday.”

Judge Scott M. Matheson wrote on behalf of the unanimous court, “Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses has resulted in concrete problems in Okalahoma.” (Awad v. Ziriax).

Larson test a Gateway to Addressing Laws that Discriminate Between Religions

The 10^th Circuit also applied the Larson test as a gateway to the Lemon test. While the Lemon test Lemon v. Kurtzman, 403 U.S. 602 (1971) applied to “laws affording uniform benefit to all religions, and not to provisions…that discriminate among religions,”  in Larson v. Valente, 456 U.S. 228, 255 (1982), the Supreme Court ruled that if a law discriminated between religions, it could survive only if it is “closely fitted to the furtherance of any compelling interest asserted.”

In the case of California Christian Univ. v. Weaver, 534 F.3d 1245 (10^th Cir. 2008), the 10^th Circuit had described Larson, “The First Amendment mandates governmental neutrality between religion and religion …. The State may not adopt programs or practices…which aid or oppose any religion….. This prohibition is absolute.” Larson, 456 U.S. at 246.

Proponents of the Oklahoma amendment had argued that Larson was no longer good law because it is used infrequently, but the 10^th Circuit ruled that the Supreme Court had never overturned it, and stated that this rarity “likely reflects that legislatures seldom pass laws that make ‘explicit and deliberate distinctions between different religious organizations’ as contemplated in Larson.”

In fact, the Supreme Court had referenced the rarity of this type of case in Church of the Lukimi Babalu Aye, Inc., v. City of Hileah, 508 U.S. 520 (1993)(“The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions.”)

The Larson case facts were mild compared to the facts of  Oklahoma amendment case. In the Larson case, a Minnesota statute imposed certain registration and reporting requirements on religious organizations that solicited more than 50 percent of their funds from non-members. No specific religious group was identified. But the Oklahoma statute specifically targeted Islam, and was defined in these terms: “Sharia Law is Islamic Law. It is based on two principle sources, the Koran and the teachings of Mohammed.” (SQ 755).

The Oklahoma amendment further instructed the courts to “uphold and adhere to … if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.” The law did not prohibit Oklahoma courts from upholding laws of any other religion. The Oklahoma amendment also included language that Oklahoma “courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law.”

Because of the lack of Sharia law in Oklahoma, the Court ruled that the harm that the amendment would remedy was “speculative at best and cannot support a compelling interest.” Further, the court said that there was no way to tell whether the amendment would solve any Sharia law problem since “one cannot try on a glove to see if it fits when the glove is missing.”

The Court further found that Muneer Awad, a Muslim who had filed the case, would suffer irreparable injury without the injunction. The court applied on the principle that “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumara v. Hurley, 242 F.3d 950. The 10^th Circuit also noted that although states can legislate in certain areas (including ballot initiatives), “these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.”

The full decision is available here: http://www.ca10.uscourts.gov/opinions/10/10-6273.pdf

CONCLUSION: Certainly, if Islamic law had been imposed, it would be a violation of the Establishment Clause. But without that even being at issue, the Amendment became an excuse to marginalize a religious group.

Under pre-existing law, employers were required to provide accommodation so long as it did not cause an “undue hardship” for the employer. However, since “undue hardship” was not clearly defined, it was generally viewed as a requirement that the “de minimis cost or burden” standard be applied.

The new City law amends sections 8-102 and 8-107 of the New York City Human Rights Law (“NYCHRL”) to defines what “undue hardship” means:

“Undue hardship” shall mean “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:

• The identifiable cost of the accommodation, including the costs of loss of productivity and the cost of retaining or hiring of employees or transferring of employees from one facility to another, in relation to the size and operating cost of the employer.
• The number of individuals who will need the particular accommodation to a sincerely held religious observance or practice, and
• For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

The Act also provides that employers in New York City can establish that a religious accommodation will result in an “undue hardship” by showing that it will result in the employee’s inability to perform the essential functions of his or her position.

Potential remedies for violating the law include reinstatement, back pay, compensatory damages, attorney’s fees, and employers could be subject to a civil penalty of $125,000.

From a practical standpoint, employers should consult with human resources experts to ensure compliance by making sure that anti-discrimination policies are up to date, and job descriptions should be tailored to accurately describe portions of the job duties that involve attendance, availability, and dress / grooming requirements.

This law is of particular significance to Muslims and Sikhs who have faced an increase in discrimination since the events of 9/11, and will apply to both public and private sector employers.

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By Michael D. Peabody -

In August 2011, the Pew Research Institute released a study, Rising Restrictions on Religion, which found that more than a third of the population of the world lives in nations where government restrictions or social hostilities involving religion are increasing. Only 1% live in countries where things are getting better.

In 1998 when Congress, as part of the International Religious Freedom Act (IRFA), approved the creation of the United States Commission on International Religious Freedom (USCIRF), Congress believed that it was important that the USCIRF operate as an independent governmental body to monitor executive branch activities related to religious freedom and to make recommendations for Presidential action when it found abuses.

Under the IRFA, the Commission has communicated with embassies around the world to find out the state of freedom, and has produced reports outlining the state of freedom around the world. This includes identifying “countries of particular concern” (CPC) that have engaged in torture, prolonged imprisonment, or “other flagrant denial[s] of the right to life, liberty, or the security of persons.” Once a country is tagged as a CPC, per the IRFA, the government must, subject to the right to waiver, engage anything from bilateral agreements to sanctions in order to encourage improvements. There are eight CPCs at the present time.

The Secretary of State can then make recommendations as to how to address these issues. The White House has yet to issue any new actions or sanctions against a CPC solely for violations of religious freedom, and instead has placed religious freedom issues, if they are mentioned at all, under the umbrella of existing sanctions. The result is that religious freedom issues have gotten lost in the shuffle. In short, under the IRFA, the United States is supposed to indicate that a portion of, or the entirety of sanctions being imposed depending on the situation, is due to religious freedom violations.

In the past, the United States was relatively isolationist when dealing with religious freedom issues in other countries, leaving those issues to non-governmental organizations (NGOs). The U.S. instead worked to preserve its own interests around the world. As an indirect result, many otherwise restrictive nations were forced into situations of regime change resulting in increased religious freedom within their borders. For instance, after an extended Cold War essentially bankrupted the repressive Soviet Union, its citizens enjoyed a period of unparalleled religious freedom. Today, the State Department has to tackle a wide range of pressing issues involving direct threats to the United States including terrorism, threats of a nuclear Iran, chaos in the Middle East, warfare on multiple fronts, and many other issues.

As a result, the government is not always in a diplomatic position to address religious freedom issues separately. As I write this, the United States is experiencing unprecedented tension with Pakistan regarding the War on Terror and the possibility of significant armed conflict seems nearly imminent. Pakistan is also a CPC, and in the midst of this if USCIRF were to operate “properly” the President should also be levying sanctions against Pakistan for the way it treats its own citizens when in reality the flow of U.S. dollars to Pakistan may be the only thing preventing all-out war.

The USCIRF should be continued – it has an important function as a monitor of international religious freedom, but as long as the State Department is also engaged in its fundamental duty of protecting the interests of the United States above those of any other nation, it will not be able to fulfill its complete charter of recommending direct action against hostile countries without facing a great deal of suspicion of either diplomatic or religious mission. While many hostile nations promote a particular religious worldview with impunity, and act under color of that faith as they carry out persecution, the USCIRF must be careful in contrast not to be seen as fulfilling a mission designed to extend American Christianity. If it is perceived across borders and language barriers as a low key Medieval Crusade, it will lose its effectiveness and be a hindrance to international diplomacy.

Religions cross borders, cultures, and languages, and thus the promotion of freedom of religion is generally perceived as a mission of peace, not a mission of war. Because the parameters of religion differ from national borders, unless a hostile nation changes its internal character, religious freedom abuses will continue either officially or unofficially.

In a perfect world, the tasks of the USCIRF would probably be best handled by the United Nations, but that body seems unlikely to move in a productive direction along these lines anytime soon. The reality is, as uncomfortable as it might seem, aside from the Holy See, there is no independent recognized country in the world that can carry an olive branch of religious peace without an overt direct threat of violence or sanctions. It would therefore appear incumbent on non-governmental organizations (NGOs) and religious organizations to assert religious freedom using whatever peaceful and cooperative methods that are available.

This does not mean that USCIRF should be allowed to wither on the vine – its role as a monitor of religious freedom is invaluable and it establishes this sense in the minds of Americans and shows the global community that this nation holds onto and respects these inalienable values regardless of whether they can be imposed on other nations. The USCIRF is one mechanism by which the United States can remain at the forefront of promoting the ideals of freedoms of speech, conscience, religion, and belief.

The conference pulled together issues from the federal level and various states. For instance, in Illinois, after 40 years of cooperation, government officials stopped working with Catholic Charities on adoptions and foster-care placements because the agency refused to recognize a new civil union law. Bishops are suing the state, claiming that denying funds because of the religious beliefs of the church is impermissible. In New York, the Catholic church has complained that the religious exemption to gay-marriage laws is too weak.

On health care, the Catholic Church has argued that there should be a broader exemption to the federal mandate that private insurers pay for contraception. The church is also fighting the Health and Human Services Department’s recent denial of renewal of financial aid for their anti-human trafficking work. The ACLU had filed suit opposing government funds to anti-human trafficking groups that “impose religiously based restrictions on reproductive health services,” claiming that many of the women who are victims of rape and forced prostitution are in need of reproductive health services.

This is coming on the heels of recent attempts by the church to pressure Catholic politicians to vote in line with church teachings.
Each year, Catholic charities across the nation receive hundreds of millions of dollars in federal funding, which have increased over the years, and the battle for “religious liberty” is about who gets to control the way that the tax dollars are spent.

In the past, Catholic public policy discussion covered a broad range of issues ranging from immigration and workers’ rights to nuclear proliferation. Today, the focus has narrowed to the issues of abortion and gay rights.

The conference has formed a new “religious liberty” committee, the Ad Hoc Committee for Religious Liberty and is hiring another attorney and lobbyist to address “religious liberty and marriage issues” on Capitol Hill. The Committee is also planning to lobby against a Congressional repeal of the Defense of Marriage Act and the military’s repeal of “Don’t Ask, Don’t Tell.”

Sadly, as part of this change in focus, the term “religious liberty” is being redefined away from protecting the rights to speak, believe, and practice religion. Instead, “religious liberty” is apparently the right to receive government money without restrictions.

And we cannot ignore the fact that other Americans have sincere religious disagreement with the positions being promoted by the bishops. Are the rights of conscience of those who take a different stance on the disputed issues to be dismissed as illegitimate?

To be sure, these are not easy questions to answer. Certainly institutions should not be compelled to act against their religious mission. Yet, the state does not have an implicit obligation to fund them. The Church can assert its right speak in the the public square, but it should not assume power it does not have in order to force the rest of society to follow its lead.

In 1773, a Baptist minister in New England observed that where “church and state are separate, the effects are happy, and they do not at all interfere with each other: but where they have been confounded together, no tongue nor pen can fully describe the mischiefs that have ensued.”

That separation should not be torn down in the name of religious liberty. I hope that the US Conference of Catholic Bishops will keep this in mind as it begins its new chapter of advocacy in Congress, and recognize that they are not the arbiters of morality in the nation, but rather are one of many organizations representing the broad spectrum of belief and non-belief in the United States.

(Click here to read Archbishop William T. Lori’s speech at the US Conference of Catholic Bishops.)

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While informal polls projecting that the ballot measure will lose by a large margin (see SF Gate – May 28, 2011), the response to the bill has attracted national attention.  In a lawsuit filed by the Jewish Community Relations Council and Muslim individuals against the San Francisco Department of Elections and the bill’s primary promoter Lloyd Schofield, attorneys argue that current state law already prohibits local jurisdictions from preventing the practices of  ”healing arts professionals,” which they say includes Jewish mohels.

California Assembly Speaker Pro Tempore Fiona Ma (D-San Francisco) and Assembly member Mike Gatto (D-Los Angeles)  have introduced a bill that would directly ban local bans on circumcision. In a press conference held in Los Angeles yesterday, July 21, 2011, Ma and Gatto said that the bill would render the San Francisco ballot measure moot.

The first hearing on the bill (AB 768)  is scheduled for August 15 when the Legislature reconvenes.

Congresman Brad Sherman (D-Sherman Oaks) has introduced a similar bill, “The Religious and Parental Rights Defense Act of 2011,” (H.R. 2400) on a Federal Level.

Click here to read the latest versions of California AB 768 and learn the current status.

The following is the latest information on the Federal bill:

The proposal of the European Sunday Alliance presents several problems – instead of recognizing liberty of conscience in these issues, it would rely on the majority opinion that Sunday is the appropriate day of rest to shut down Sunday commerce and in the process would ignore and marginalize the rights of those who observe a different day.

I am a huge supporter of a weekly day of rest. I personally observe a weekly day of rest, and, like many others who write for Liberty, have advocated for the rights of those who have been denied rest day accommodation through the legislative and legal process. I have advocated for the Workplace Religious Freedom Act, which would make it harder for employers to force employees to choose between their religious rest day beliefs and their jobs. Employees need to be treated with respect, and given appropriate breaks by their employers.

However, the proposal of the European Sunday Alliance presents several problems – instead of recognizing liberty of conscience in these issues, it would rely on the majority opinion that Sunday is the appropriate day of rest to shut down Sunday commerce and in the process would ignore and marginalize the rights of those who observe a different day.

The language of proposed Sunday rest laws is nothing new, in fact, it was one of the first pieces of legislation passed when the Emperor Constantine converted to Christianity. In March of 321 A.D., Constantine declared, “Let all judges, the people of cities, and thoseemployed in all trades, remain quiet on the Holy Day of Sunday. (Code of Justinian, Book III, Title XII, III. THE JUSTINIAN CODE FROM THE CORPUS JURIS CIVILIS. Translated from the original Latin by Samuel P. Scott. Central Trust Company, Cincinnati, 1932).

Following the passage of the law, the Council of Nicea met in 325 A.D. and decided that Sunday was to be not only the day of rest, but the day of worship, and that Passover was to be observed on Sunday as well. Following that, those who insisted on keeping the seventh day as the day of rest and worship were severely persecuted for both civil and religious reasons.

In more contemporary history, the formation of the European Sunday Alliance last month parallels a similar development that took place in the aftermath of the American Civil War. In 1885, a petition was circulated for the U.S. Congress to use its powers to regulate interstate commerce to ban interstate trains, military parades, and mail service on Sundays except for work “of necessity, and mercy and humanity.” A bill was introduced in 1888 by Congressman Henry Blair, and it was soon endorsed by a wide range of religious organizations and labor unions including the Knights of Labor.

Most of the advocates at the time promoted the secular nature of the uniform day of rest, however for many religious advocates it represented a return to the kind of moral values that would reform a society that had so recently been torn apart. They believed that a return to Sunday Sabbath rest was a Biblical imperative, but publicly argued that it was for the good of society.

From a practical, economic standpoint, a uniform cessation of the wheels of commerce aside from certain health and safety exceptions, was required, otherwise it simply would not work. Since the majority believed that Sunday was already the day of rest, the Blair bill called for Sunday observance. Since the majority had thus defined the moral imperative, those who rested on a different day would simply have to adapt. In fact, those who worshipped on the seventh day of the week because of their religious beliefs could be deemed as acting illegally if they did not also rest on Sunday.

While the national bill did not pass, local variations passed across the nation, and some who worked on Sundays were arrested and even jailed.

In its Founding Statement, the European Sunday Alliance argues that, in the interest of synchronicity, Sunday is the appropriate day of rest for all of Europe, and makes no allowance or acknowledgment of what should be done for those whose faith requires them to rest on a day outside of Sunday. In fact, it is not hard to see how those who rest on a different day might be an annoyance or hindrance to Sunday rest, and even in the debate may be portrayed as roadblocks, troublemakers, or even anti-religious. Businesses who open on Sunday could be fined, and those who conduct their own entrepreneurial endeavors on Sunday could also find themselves operating against the law.

Many people are predicting that the European Sunday Alliance does not have the political power or support to actually implement a Sunday closing law across Europe. This could be true, but today, as in ages past, those who value liberty of conscience cannot afford to sit idly by hoping that it goes away. They need to make their voices heard, both legally and theologically. Legal arguments may become moot as laws can change, so those who wish to defend their beliefs must also be able to provide a theological basis to demonstrate the reason for their religious commitment and be able to demonstrate that it is, for them, a moral imperative, not simply a preference.

While one cannot predict the inevitability persecution resulting from what appears on its face to be a well-intentioned, if misguided proposal to relieve economic and political turmoil through rest, European history shows that stranger things have happened. Now, before it passes, is the time to speak up for those minorities who could be adversely affected if this proposal becomes law across Europe. It is a serious proposal and those who treat it as a mere curiosity may ultimately wish that they would have spoken up earlier.

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This piece also appears with others addressing this issue at the Liberty Magazine Roundtable  at http://www.libertymagazine.org/index.php?id=1760.

This year 42 state legislatures are considering creating or expanding school voucher programs. Private parochial educators face serious pitfalls with some of these programs that could eliminate the effectiveness of their religious mission. 

In an ancient story of twin brothers, Esau, next in line for the patriarchal blessing, returns famished from a hunting trip. When he arrives home, he finds his brother Jacob, cooking stew. Esau tells his brother, “I’m starving! Quick, give me some!”

Jacob, the consummate negotiator, asks for a bargain that will change the course of a nation. “You can have some, but you must first give me your birthright blessing.”

Esau responds, “What good is my birthright if I die of starvation?”

Esau swears an oath to give Jacob the birthright and receives the stew and some bread. In return, he surrenders his position as the next patriarch.

As the U.S. economy continues to falter, many private religious elementary and high schools are feeling quite famished. There is simply less money. Parents have less money to enroll their children, and this has led to layoffs of teachers, inability to upgrade or even maintain buildings, and many schools feel that they are going to have to find funding somewhere or simply shut their doors.

This year alone at least 42 state legislatures have introduced legislation to either create or expand school voucher and scholarship tax credit programs in response to pressures from parents and private schools.

Private education credit programs tend to differ with some simply providing a tax credit to parents. Others impose significant eligibility requirements on the schools that could change the very character of religious private schools. In at least one “choice scholarship” program, there are specific requirements that will require participating schools to allow the government to evaluate the make-up of the school board and employment and admissions policies, review the school curriculum, and would require schools to provide opportunities for parent to opt-out of devotional programs and activities. The schools will also be required to abide by all civil-rights anti-discrimination laws except for religion.

While these requirements might seem unreasonable, or even onerous, some religious elementary and secondary schools facing Hobson’s Choice, are  claiming that they are fully eligible and are clamoring for the opportunity to obtain the state funding. And if the schools are not presently eligible, they may be willing to make whatever changes are necessary to become eligible in the eyes of the state.

If the religious background of a school allows it to segregate its secular life from its sacramental life, then it might be possible to participate in such a program. I am concerned, however, that schools from my own faith tradition be very cautious about getting involved in this funding scheme. Seventh-day Adventist education has taken a holistic approach that does not allow for secular education to be separated from spiritual education. To cite the CIRCLE (Curriculum and Instruction Resource Center Linking Educators) website, located at circle.adventist.org, “Adventists have embraced the philosophy that education should be redemptive in nature, for the purpose of restoring human beings to the image of God, our Creator. Mental, physical, social, and spiritual health, intellectual growth, and service to humanity form a core of values that are essential aspects of the Adventist education philosophy.”

In a reasonably predictable hypothetical situation, let’s assume that an Adventist school accepts vouchers and promises to follow the rules. Because of the excellent education offered, secular students soon swell its ranks. The school is better off financially than it has ever been and even takes out a mortgage for a new science building. Several parents choose to opt-out of religious instruction and file a complaint with the state when the science teacher, who is part of the “secular” part of the campus, teaches creationism. The school is investigated by an accreditation team that determines its science curriculum is too religious. The school must now decide whether it will confine creationism to the chapel or forego eligibility for the scholarship funding that it now relies upon for its survival.

In Adventist Education, October-November 1989, Dr. George Akers who was the World Director of Adventist Education wrote, “Distinct from extant educational philosophy is the idea that earthly study and growth move on to eternity and that, through the grace of God, building character fit for admission to eternity is the big business of life. It is a cooperative effort between home, school, and student. This special dimension of faith-nurture is stressed throughout the Ellen White writings which indicate that teaching and learning should take place in the context of a special sensitivity to the cosmic struggle between good and evil. Accordingly, Ellen White lifted up the Bible as a great source of spiritual enlightenment that should illuminate all subject matter. Conversely, the study of subject matter should illustrate Biblical principles. This integration of faith and learning was to be the ligature of Christian education and the special expertise of a Christian teacher.”

Through this philosophy the Adventist school system has grown to the largest Protestant educational system in the world.  In the North American Division alone, there are over 1,049 elementary and secondary schools in the United States, Canada, and Bermuda with 65,000 students enrolled.  Globally, the church operates approximately 7,548 educational institutions. So, just to be clear, the issue of who controls the curriculum and who gets to choose the teachers is extremely important to the church.

There are Establishment Clause considerations about public money going to finance religion, financial arguments that public school systems will be drained to the benefit of private education, and many other arguments that people are using to dispute these types of voucher programs.

But my concern is for the integrity of the private parochial school system.  Schools could, by operation of their own agreement to accept requirements for scholarships, be regulated to the point that they have nothing unique to offer the world. That one school accepting a local requirement might subject other affiliated schools in the region, or even nationally, to extended liability because of statements they may make in order to obtain this money. For this reason, a national approach to this issue is called for, and each program should be vetted to ensure that it will not involve undue regulations or impose liability on other institutions under the larger umbrella organization.

In the quest for survival, these schools might end up selling their birthright as holistic centers of learning andvoluntarily waive  the very reason for their existence. When it comes to deciding whether to participate in these programs, it is imperative that parochial schools look further ahead and count the cost of surrendering key advantages for the “stew” of government money.

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Note:  People often wonder why it is possible for religious colleges and universities to receive public funding but not elementary schools and high schools.  In Tilton v. Richardson, 403 U.S. 672(1971), The Supreme Court found several distinctions between colleges and universities to uphold the statutory scheme, including the fact that colleges do not have as their primary goal the indoctrination of students into a particular religion and the that college students are much less impressionable.

The American voucher scholarship programs, where separation of church and state is a clearly defended constitutional principle, are markedly different than programs in other countries, and comparisons between successes and failures internationally may not apply here.

The delivery of mail on Sundays in the United States has a fascinating history, and most people do not know that until 1912, the Postal Service routinely delivered mail on Sundays. It was only under pressure from religious and labor organizations that the USPS gradually transitioned to the now-familiar Monday through Saturday schedule.

The Postal Service is as old as the nation itself, beginning with the kite-flying, bifocal inventing, and noted Renaissance man Benjamin Franklin who organized the USPS at the direction of the Second Continental Congress on July 26, 1775. The founders then gave Congress the power to establish and maintain the postal service as one of the enumerated powers in Article One of the Constitution. The mail was the sole communication lifeline of the newly formed nation, and the Postmaster a cabinet position and the final position in the presidential line of succession until the USPS was reorganized in 1971.

Between its inception in 1775 and 1912, postal employees delivered mail seven (7) days a week. In the early 1800s, religious leaders became concerned that employees were forced to work on the “Christian Sabbath,” or Sunday, and began to petition Congress to use its Article I powers to disallow Sunday delivery. This concern reached a fevered pitch in 1810 when Congress required post offices to open at least one hour on Sunday.^[1] Outraged that Congress had thus “enforced Sunday desecration,” religious leaders began to clamor for legislation that would outlaw Sunday operations.

This stemmed, in part, from the fact that prior to the passage of the equal protection clause of the Fourteenth Amendment which was one of the post-Civil War Amendments which applied the establishment clause of the First Amendment to the states, state and local governments were able to regulate Sunday closings of businesses and even regulate what private activities a person could participate in on Sundays. The post office, however, was Federal territory and people could go there and conduct business, or socialize and the local religious leaders had no jurisdiction to interfere.

In response to the petitions, in January 1811, Postmaster Gideon Granger issued a report to Congress describing his approach to the law requiring at least one hour of postal operations and expressing his concern that it might compel his employees to violate Sunday sacredness.  Writing in the third person, he stated, “to guard against any annoyance to the good citizens of the United States, he carefully instructed and directed the agents of this office to pass quietly, without announcing their arrival or departure by the sounding of horns or trumpets, or any other act calculated to call off the attention of the citizens from their devotions . . . .” After describing additional methods whereby he intended to mitigate Sunday desecration, the Postmaster concluded on a religious note, “that compelling the Postmasters to attend to the duties of the office on the Sabbath, is, on them, a hardship, as well as in itself tending to bring into disuse and disrepute the institutions of that holy day.”^[2]

“[C]ompelling the Postmasters to attend to the duties of the office on the Sabbath, is, on them, a hardship, as well as in itself tending to bring into disuse and disrepute the institutions of that holy day.” Postmaster Gideon Granger

In 1815, the United States House in Committee of the Whole held hearings on the petition of citizens from five states to prohibit Sunday transportation and opening of mail. After reviewing the petitions, the committee responded that communication was necessary, particularly since the nation was at war, and resolved that, “at this time it is inexpedient to interfere and pass any laws” prohibiting mail transportation and opening on Sundays.^[3]

The debate continued and in 1830, 75-year-old John Leland, a prominent Baptist minister who had championed liberty of conscience at the founding of the nation, addressed the issue. After describing America’s religious diversity, ranging from Islam to Judaism, paganism to Christianity, he stated that he believed that in deciding to close on Sunday, Congress would be making a theological decision in deciding which day was holy. After all, he reasoned, Congress should also recognize that Saturday was holy to Jews and “Sevendarian Christians.” Leland concluded:

“The powers given to Congress are specific-guarded by a ‘hitherto shalt thou come and no further.’ Among all the enumerated powers given to Congress, is there one that authorizes them to declare which day of the week, month, or year, is more holy than the rest-too holy to travel upon? If there is none, Congress must overleap their bounds, by an unpardonable construction, to establish the prohibition prayed for. Let the petitioners ask themselves the question. If Congress should assume an ecclesiasticopolitical power, and stop the mail on the seventh day, and let it be transported on the first, would that satisfy them? If not, are they doing as they would be done by?”^[4]

A group of citizens from Salem, New Jersey, including some Saturday-Sabbath keepers also wrote to Congress in 1830, concerned that the proposed Sunday closing would favor some religions over others, and called for the continued separation of church and state. “We cannot be too thankful,” they wrote, “that the Constitution of the United States guarantees to every one the rights of conscience and religion; . . . the proposed [Sunday closing] measure would operate as a violation of these rights . . . would pave the way to a union of church and state, against which our horrors are excited by the awful admonitions of history; which would be the death blow to our civil and religious liberties . . . and end in the worst of all tyranny ‘an ecclesiastical hierarchy.’”^[5]

Near the turn of the century, religious leaders once again sensed the need for greater observance of Sunday sacredness, and pushed for legislation that would prohibit various types of work on Sunday. On August 24, 1912, President William Taft signed H.R. 21279 (Mann) into law, closing all post offices on Sundays an introducing a six-day work week for postal clerks and letter carriers. The bill provided “that hereafter post offices . . . shall not be opened on Sundays for the purpose of delivering mail to the public.”^[6]

The bill was put into effect on September 1 of that year, and although it was hailed as a victory for workers’ rights by the American Federation of Labor, Sunday sacredness advocates viewed it as a spiritual victory. Among the many religious groups who claimed victory, the Federal Council of the Churches of Christ in America, in its quadrennial report noted that “it is gratifying to know that through the co-operation of the associations of letter and postal clerks, under the leadership of the Lord’s Day Alliance of the United States, a bill passed the last Congress, which closed to the public all the first and second class post-offices in the United States on Sunday.”^[7]

However, the Postmaster cited scheduling difficulties, particularly the requirement that those employees fulfilling necessary work on Sunday be granted compensatory time in the next six days, and said that the new law “has greatly increased the difficulties of efficient post-office service.”^[8] This would seem to indicate that religion, not efficiency, was the primary reason for closing on Sundays.

Today, all United States Post Offices are closed for Sunday delivery except for two: Angwin, California and Collegedale, Tennessee where a significant percentage of people observe the Sabbath on Saturday and where private post offices, owned by the Seventh-day Adventist Church which operate universities in these towns, have contracts that guarantee no Saturday deliveries.

[1] “11th Congress, 2nd Sesssion, An Act Regulating the Post-Office Establishment, Enacted April 30, 1810.” American State Papers Bearing on Sunday Legislation, Revised and Enlarged Edition, compiled and annotated by William Addison Blakeley, Revised Edition edited by Willard Allen Colcord, The Religious Liberty Association, Washington, D.C. 1911, 176.

[2] Harmon Kingsbury, The Sabbath: A Brief History of Laws, Petitions, Remonstrances and Reports with Facts and Arguments Relating to the Christian Sabbath, S.W. Benedict, Printer, New York, 1840, 26.

[3] Blakeley, 393.

[4] The Writings of John Leland, Edited by L.F. Greene, Arno Press & The New York Times, New York,  1969, 564-66.

[5] Blakeley, 298.

[6] American State Papers and Related State Papers on Freedom in Religion, compiled and annotated by William Adison Blakeley, Published for the Religious Liberty Association by the Review and Herald, Washington, D.C., 1949, 273.

[7] Christian Unity at Work,  The Federal Council of the Churches of Christ in America in Quadrennial Session at Chicago, Illinois, 1912, Published by the Federal Council of the Churches of Christ, edited by Charles S. Macfarland, 1913, 242.

[8] Post Office Department Annual Reports for the Fiscal Year Ended June 30, 1914: Report of the Postmaster General, Government Printing Office, Washington, D.C., 1914, 143

photo credit: Ksayer1

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Michael Peabody is the editor of ReligiousLiberty.TV.

There are good secrets and bad secrets. Things to be concealed and things to be revealed. Some people want to know, others want to hide.

Secrecy is an valuable commodity. From universities that want to protect professors’ academic freedom by keeping their controversial viewpoints from public criticism to the Central Intelligence Agency’s protection of international sources, secrecy and confidentiality allows organizations and governments to effectively achieve their goals with a degree of freedom and flexibility.

On the other hand, transparency is also valuable. For instance, without whistle blowers, the American people would never have learned about the torture of Iraqi prisoners of war at Abu Ghraib and the United States would not have recently apologized for purposely infecting 696 Guatemalan prisoners, soldiers, and mental patients with syphilis in the 1940s. (For that story, see http://www.guardian.co.uk/world/2010/oct/01/us-apology-guatemala-syphilis-tests)

After 9/11 when the United States went to war in Iraq and Afghanistan, the Bush administration was roundly criticized for keeping things too private, and when President Obama took office, he promised a different approach the Administration issued a memorandum called “Transparency and Open Government” which is still visible online at http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/

In the memo, Obama said, “My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.

In the age of the Internet, information can be shared on a worldwide basis at the speed of light. The recent Wikileaks revelations of State Department communications, which were dispersed through the established media, have caused a great deal of embarrassment for the United States diplomatic corps, and may in fact harm international relations. In response, we can expect that it will be more difficult for representatives to operate, and we can also expect attempts to curtail freedom of speech.

They have also showed the American people the precarious situation in which we find ourselves by trying to balance between competing national interests. For instance, we are economically tied to China which has been sharing technology with Iran. But we are tied by oil to Saudi Arabia whose leadership wants the U.S. to attack Iran.

Other leaks from other sources have showed us that the Federal Reserve secretly bailed out General Electric and other U.S. companies to the combined tune of trillions of dollars. The Fed had long said that it needed complete secrecy to run the U.S. economy and we can only hope that revelations along these lines will not hurt our international credit rating.

If you remember the old Road Runner cartoons, Wiley Coyote can run over the side of the cliff and will hang in mid-air until he looks down and sees what the situation is. It is then that he falls. Hopefully the same will not happen if China and other major creditor nations look and see that the Fed has printed money beyond its value in order to prop up a perception of credit worthiness. Right now, the Fed’s veil of secrecy is providing the buffer between Wiley and the bottom of the canyon.

So what’s the moral to this story? We can learn that we cannot always trust what is on the surface because other things may be lurking below although you can go crazy trying to figure it out. We can see that secrets can protect good and bad activities, and that when there is harm being committed it is not a bad thing for people to stand up and say so. We can also learn that the path of a whistle blower is fraught with peril as people with multiple interests or fear of association will agree to “shoot the messenger” and for this reason that some secrets, like the Guatemalan experiments, may not be revealed for decades.

On a spiritual angle, the Bible has something to say about both secrecy and transparency. In Luke 8:17 Jesus says that there’s no point in trying to look good in public while doing evil in private. “For there is nothing hidden that will not be disclosed, and nothing concealed that will not be known or brought out into the open.”

If we want to avoid living life in fear of society’s spotlight, there is a simple standard – live life as if you’re in a fishbowl in the middle of Times Square. When the spotlight hits, people will see good things and criticism of you will be because they can’t handle the brightness of your goodness, not because they find actual fault with you.

“But even if you should suffer for the sake of righteousness, you are blessed. and do not fear their intimidation and do not be troubled, but sanctify Christ as Lord in your hearts, always being ready to make a defense to everyone who asks you to give an account for the hope that is in you, yet with gentleness and reverence; and keep a good conscience so that in the thing in which you are slandered, those who revile your good behavior in Christ will be put to shame. For it is better, if God should will it so, that you suffer for doing what is right rather than for doing what is wrong.”
1 Peter 3:14-17 (NIV).

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Three  former employees Silvia Spencer, Ted Youngberg, and Vicki Hulse had had filed suit against the well-known humanitarian organization in 2007, claiming they had been victims of religious discrimination when they were fired because they did not agree with the religious beliefs of the organization. When hired, they had acknowledged their agreement and compliance with World Vision’s Statement of Faith, Core Values, and Mission Statement, but they later denied the diety of Jesus Christ and the doctrine of the Trinity.

In a 2-1 decision, the 9th Circuit ruled that despite the fact that secular organizations could provide the same or similar services, World Vision is a religious organization in practice and in its Articles of Incorporation, and provides Christian religious and missionary services.  The court ruled that World Vision is free to continue faith-based hiring.

In a statement, World Vision applauded the court’s decision, “Our Christian faith has been the foundation of our work since the organization was established in 1950, and our hiring policy is vital to the integrity of our mission to serve the poor as followers of Jesus Christ. . . . World Vision will continue to vigorously defend our organization’s freedom to hire employees who share our faith, as do other religious organizations, whether Muslim, Buddhist, Jewish, or Christian.”

World Vision is known for its child sponsorship program which provides donors the opportunity to make monthly donations toward the education of children in impoverished countries for $1 a day.  The organization is purported to serve over 100 million children in 100 countries around the world. For more information, visit http://www.worldvision.org

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• The 9th Circuit’s Ruling in Sylvia Spencer v. World Vision Inc. is available here.  In this reviewer’s opinion, the concurring opinion of Judge Andrew Kleinfeld beginning at p. 12259, provides an excellent primer on how Title VII applies to religious organizations.

This is an analysis of the courtroom proceedings in Perry v. Schwarzenegger and the August 4, 2010 decision by Judge Vaughn Walker upholding the right of same-sex couples to marry and not an analysis of the moral reasoning behind either position.

Summary

In short, Judge Walker ruled based on the evidence presented, as any trial judge should, and regardless of his own personal sexual orientation or biases, Prop 8 supporters simply did not make a viable case for themselves. Sloganeering may have won the election but did not win a trial where real evidence was required. Prop 8 supporters may later look at the ruling and claim it was wrongly decided but as this essay points out, the reality is that they did a poor job presenting their evidence and only put two witnesses on the stand, both of whom had previously written statements that contradicted their testimony in favor of Prop 8. When both of these witnesses were neutralized, Prop 8 advocates had nothing left with which to prove their case and any effort by any judge to add in facts to uphold Prop 8 would have been the very definition of judicial activism.

How Prop 8 Became Law

In May 2008, the California Supreme Court held that same-sex marriage was permissible under the state constitution and thousands of same-sex couples were married. In November 2008, by a vote of 52% to 48% California voters passed Proposition 8 ( “Prop 8″ ) a constitutional amendment outlawing same-sex marriage.

This constitutional amendment was argued before the California Supreme Court. At oral argument in March 2009, the court asked Ken Starr, lead counsel in favor of Prop 8, whether there was any limitation to what the people could do.

Speaking of the state constitution, Starr replied, “The right of the people is inalienable to change their constitution through the amendment process. The people are sovereign and they can do very unwise things, and things that tug at the equality principle.”

Despite the vast implications of Starr’s statement, the court found itself powerless to overturn Prop 8.

The Question Before the Court

When David Boies and Theodore Olson brought suit against Prop 8 in Federal Court alleging that the equality principle of the Federal Constitution was violated when the people of California took away the existing right to marry, the argument focused on a simple question, “Is there a compelling state reason, or even a rational basis, for California to prohibit same-sex marriage?”

During the run-up to the November 2008, Prop 8 supporters were free to say anything to get votes. They took full advantage of this by portraying a parade of horrors that same-sex marriage would bring and played to gut-level anti-homosexual feelings. They argued that churches would be forced to perform gay marriages. They argued that it would lead to increases in child molestation. They argued that the Bible said homosexuality was wrong and that the state law should mirror the Bible.

But in Federal court, Prop 8 supporters needed to present legal, secular empirical evidence to support the idea that same-sex marriage was such a threat that the government was compelled to put a stop to it. This argument was made more difficult by the fact that a handful of states already approved same-sex marriage.

In this context, personal or religious convictions and moral arguments needed to be backed up with objective facts. Unlike the California Supreme Court, Judge Walker was not beholden to the simple fact that the California constitution had been amended. He was charged with examining the evidence for and against Prop 8 in light of the U.S. Constitution.

The Evidence Presented

As in any trial, the judge would have to make a decision based on the evidence presented. He did not have the luxury of filling in the gaps in the testimony in order to reach a decision in line with his own feelings, which is the hallmark of being an “activist judge.” Rather, he had to rule based on the facts presented, and this is what he did in his lengthy ruling which is available online athttp://www.scribd.com/doc/35374801/Prop-8-Ruling

To challenge Prop 8, same-sex marriage advocates brought forward eight lay-witnesses, including two same-sex couples, and nine expert witnesses. The lay-witnesses described their feelings of being discriminated against and the idea that the law was not fair. Expert witnesses testified to various facts and statistics that they said demonstrated that same-sex marriage was not socially harmful. These were the standard arguments that same-sex marriage proponents have been making for years and there really was nothing new or novel.

Same-sex marriage advocates even called Hak-Shing William Tam on the stand in order to demonstrate that voters had been given incorrect information and voted based on anti-homosexual prejudice. Tam’s name had appeared next to the ballot arguments in the voter information pamphlets in the run-up to the November 2008 election. Tam had helped craft many of the arguments for Prop 8 and he testified that, as he stated on his website promoting Prop 8, he believed that homosexuals were 12 times more likely to be pedophiles, but could not state where he got this information.

Tam also admitted he had stated that incest and polygamy had been legalized in the Netherlands soon after the country legalized same-sex marriage in 2001. This was factually untrue. The questioning went like this:

David Boies: “You are saying here that after same-sex marriage was legalized, the Netherlands legalized same incest and polygamy?”

Tam: “Yeah, look at the date, Polygamy happened afterward.”

Boies: “Who told you that? Where did you get that idea?”

Tam: “It’s the Internet. Another person in the organization found it and he showed it to me. . . . I looked at the document and I thought it was true.”

Prop 8 Advocates Presented Only Two Witnesses And Neither Was Consistent Or Credible

Prop 8 supporters cross-examined these pro-same-sex marriage witnesses extensively but despite the large number of people who had promoted Prop 8, Prop supporters only put up two witnesses to defend the Proposition. With so few, Prop 8 defenders should have realized that they needed to put their best foot forward and present overwhelming evidence. Instead, Prop 8 supporters presented weak witnesses who had previously contradicted the pro-Prop 8 position.

David Blankenhorn, the founder and president of the Institute for American Values think tank, was anticipated to be Prop 8’s star witness. Normally expert witnesses need to “qualify” to testify in that capacity, as the court relies on them heavily when making decisions. In this case, Judge Walker allowed Blankenhorn’s testimony to be heard as an expert despite his lack of academic credentials or research and reserved the right to determine later whether he really qualified as an expert.

Blankenhorn gave contradictory testimony that marriage is a “socially-approved sexual relationship between a man and a woman” with a primary purpose to “regulate filiation”; but he also said that it was a “private adult commitment” between a man and a woman.

Blankenhorn wilted when Boies brought forward evidence that Blankenhorn had previously made written statements that Blankenhorn believed that marriage was important and could even benefit gays and lesbians, their children, and society at large. He also admitted a previous statement that same-sex marriage could lead to less sexual promiscuity. Then Blakenhorn shot Prop 8 advocates in the foot when he said that he still believed his previous statement that, “We would be more American on the day we permit same-sex marriage than the day before.”

In his decision, Judge Walker found Blakenhorn’s testimony was not credible due to his inconsistent statements. After all, which Blankenhorn was he to believe? Judge Walker spends several pages defending his decision not to give Blankenhorn expert status and to dismiss his testimony as not credible.

Prop 8 proponents’ last best hope was Professor Kenneth P. Miller, an expert in American and California politics at Claremont McKenna College. Miller was expected to testify as an expert that gays and lesbians were not really a downtrodden minority and were not harmed by Prop 8’s disparate treatment of opposite-sex and same-sex couples.

Although same-sex marriage advocates objected to his lack of qualifications in the area of same-sex marriage, the court allowed him to testify.

At the trial level, an expert is expected to have a knowledge of materials listed he or she relies on and lists in an “expert report.” Miller testified that his “expertise” in the area was based on materials given to him by the Prop 8 attorneys and that he had only read “most of the materials” and had “tried to review all of them.”

When Miller took the stand, like Blankenhorn, he was trapped by his previous writings that ultimately undermined his argument. In 2001, Miller had written an article in the Santa Clara Law review entitled “Constraining Populism: The Real Challenge of Initiative Reform” in which he wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process. He also admitted that at least some of those who voted for Prop 8 did so purely out of anti-gay sentiment.

The Decision And Its Aftermath

Given the fact that Judge Walker was dealt this hand, focused same-sex marriage advocates and two scattered Prop 8 witnesses this outcome was inevitable. Had they presented a solid case, some element of bias might be taken into account, but they presented such a sad defense of Prop 8 that a ruling in their favor would have required the judge to admit objective facts that they did not bring forward.

Predictably, despite the inexcusably poor showing by Prop 8, the religious right is painting Judge Walker as an “activist judge” who “ruled from the bench.” We are even seeing arguments that Prop 8 should have never been brought to trial and that the “will of the voters” should have prevailed.

The Prop 8 defense was fundamentally ineffective and was unable to explain why in any way it was necessary to take away same-sex marriage rights in order to protect a compelling state interest. They even failed to demonstrate that there was a rational basis for Prop 8.

Despite the deficit in Prop 8 advocacy, Judge Walker clearly spent a great deal of time considering the matter and writing an airtight decision that will be incredibly difficult to refute on appeal.

The question remains as to whether Prop 8 supporters will cut their losses now and allow California to join a handful of states where gay marriage is legal or whether they will appeal to the Ninth Circuit and ultimately to the U.S. Supreme Court which could nationalize same-sex marriage.

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For further reading see:

http://spectrummagazine.org/blog/2009/03/16/raw_majority_power_why_check…

http://spectrummagazine.org/node/1981

Given the disparity between the Circuits, it was anticipated that the Supreme Court would weigh in on the issue.  However, on April 5, 2010 the United States Supreme Court declined to hear the case of Jeffrey Reed v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America which involved a challenge to a United Auto Workers (UAW) unionization policy. Reed argued that the policy requiring employees who objected to joining labor unions on religious grounds to pay more in dues than union members or those who objected on secular grounds was discriminatory and violated the reasonable accommodation provisions of Title VII.      

In the case before the Court, Jeffrey Reed was an assembler for AM General, and as part of the contract between the employer and the United Auto Workers (UAW), Reed was required to either join the union or pay dues if he wanted to remain employed.  Some union contracts require those who do not wish to join a union to pay an equivalent amount to a non-religious charity approved by the union.  Because of Reed’s belief that the UAW supported activities conflicting with his sincerely held religious beliefs, Reed applied for a religious accommodation that would allow him to make an alternative payment to a charity, Disabled American Veterans.      

There are two major portions to union fees – political costs, and costs of negotiation. The UAW constitution gives union members the right to object to the political portion of the dues and receive a rebate of that amount, and non-union members can refrain from paying the portion devoted to political activities. They still have to pay the equivalent amount for the cost of negotiations.  The UAW calculates that about 22% goes to politics, the remainder to the union for routine administrative costs, negotiation, etc.      

While waiting for the union to approve his request for religious accommodation, Reed made payments of 78% of the union fees. However, the union then required him to come up with the additional 22% after it agreed to accommodate him.  If he was anything other than a religious objector,  paying 22% less would not have been an issue.       

He filed a complaint with the Equal Employment Opportunity Commission (EEOC), which found cause to believe that the UAW had refused a reasonable, non-discriminatory accommodation, of Reed’s sincerely held religious belief.     

However, the Sixth Circuit Court of Appeals panel decided that because Reed had not been fired or disciplined because of his beliefs, there was no need to consider the reasonableness of the accommodation. Further, the lower court found that he had not been discriminated against because many union member voluntarily paid 100% of dues anyway.      

The Sixth Circuit’s opinion requiring evidence of discharge or discipline differs significantly from the requirements in other districts.  For instance, the Ninth Circuit allows a prima facie religious accommodation claim to be established by showing a threat of an adverse employment action.  This threat can be implicit.  Disparities between the circuits have led to a scenario in which the religious discrimination provisions of Title VII are not uniformly or consistently applied across the nation.      

Because of the broader implications of his case, the Seventh-day Adventist Church and Southern Baptist Convention and others requested that the United States Supreme Court make a decision on this case.  In an amicus brief, jointly submitted on January 19, 2010, attorneys Charles Kester and Todd McFarland requested that the Court hear the case so that it could “eliminate the conflict among the circuits over what an employee of faith must prove to claim a religious accommodation, and to provide guidance to the lower courts, employers and persons of faith as to what forced choices are proscribed by Title VII.”1     

There have been attempts to pass legislation that would promote more uniform application of Title VII to workplace religious discrimination scenarios. A clarifying legislative solution may be the best answer for all involved, and we will continue to watch developments in Congress and in the Courts along these lines.  In the meantime, employers, employees, and labor unions across the nation can only hope for the best as they face a process of trial and error in dealing with these issues.       

Special thanks to Bruce Cameron, Reed Professor of Law at Regent University, for bringing this story to our attention.    

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¹ BRIEF OF AMICI CURIAE GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS AND THE ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI OF PETITIONER JEFFREY J. REED       

Further Reading:       

Statement on Supreme Court’s Failure to Take Up Reed Case: Ending Forced Unionism is the Best Way to Protect Employees of Faith       

Right to Work Attorneys File Final Brief Asking Supreme Court to Take Up Union Boss Religious Discrimination Case       

Michigan Worker Asks U.S. Supreme Court to Halt UAW Policy of Religious Discrimination       

Visit http://www.socialjusticechristian.com for more information and to watch the public service announcement for “I’m a Social Justice Christian.”

Photo Credit: Ravitej Khalsa

SALEM, OREGON – On April 1, 2010, Governor Ted Kulongoski signed a bill (HB 3686) that will repeal Oregon’s 87-year-old ban on teachers wearing religious dress. Although the Governor did express some concern about how it will be interpreted and implemented in a signing statement, the Kulongoski wrote that  ”Repealing ORS 342.650 and 342.655, which prohibited public school teachers in Oregon from wearing “religious dress” in the class room, is the right thing to do.”

In his letter, Governor Kulongoski wrote that in order to address the issues that arise “at the intersection of the teacher’s right to practice his or her religion and the students’ right to be taught in a religiously neutral environment,” the bill will not be implemented until after the 2010-2011 school year.  This will give the Bureau of Labor and Industries the opportunity to create guidelines so that there will be “clarity and predictability” in how the law will be implemented.

The bill overturns bans on teachers wearing religious dress such as headscarves, turbans, and yarmulkes.  Some groups, such as the ACLU, had supported the ban, claiming that it provided students with a religiously neutral environment while other groups, including Sikh groups, were concerned that they could not become teachers if they had to choose between the education profession and their faith.

The passage of HB 3686 provided a clean-up to last year’s Oregon Workplace Religious Freedom Act, and passed with broad bipartisan support in both the House and the Senate.  It struck a reasonable compromise and is, as the governor stated, “the right thing to do.”

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Watch a Video of the Signing Ceremony

Read the bill:  http://www.leg.state.or.us/10ss1/measpdf/hb3600.dir/hb3686.en.pdf

Read Governor Kulongoski’s letter on HB 3686 - http://www.oregon.gov/Gov/2010_Special_Session/Correspondence/Brown_HB3686.pdf

Read more at the Northwest Religious Liberty Association

Watch a Video of the Signing Ceremony