By Jason Hines –
2010 has been an interesting year in the area of church-state relations, both at home and abroad. While we cannot cover every event of magnitude that took place this year in this forum, we will touch on some of the more important events have taken place over the last 365 days.
In March, the Court of Appeals for the Ninth Circuit upheld the phrase “under God” in the pledge of allegiance. The case of Newdow v. Rio Linda Union School District, 05-17257, was the next round in the fight of Michael Newdow against the reference to God in the Pledge of Allegiance. In 2002, The Eastern District of the Ninth Circuit ruled that the reference to God in the pledge was unconstitutional. The Supreme Court overturned that ruling on the technical issue of standing in 2004. The present case was argued in 2007. In siding with the school district, the Court found that the reference to God in the pledge was recognition of the religious history of the nation and was not an affirmation of God Himself. Furthermore, the Court found that the pledge was voluntary and students were allowed to opt out of the recitation for religious reasons.
Islamophobia once again became a popular buzzword in the months leading up to the ninth anniversary of 9/11. Much of the furor revolved around the proposed Park51, more popularly known as the “Ground Zero Mosque” in New York City. The popular name of the proposed structure is exceedingly ironic, considering the fact that the structure is not a mosque and not within view of Ground Zero. The debate over Park51 was just the tip of the iceberg, as debates about proposed mosques erupted in Tennessee, California, and Wisconsin. The debate culminated over the treatment of Muslims culminated in the proposed Qur’an burning by Pastor Terry Jones on the anniversary of 9/11. Many politicians and religious groups of all stripes objected to the Qur’an burning, and Pastor Jones eventually canceled the event.
On August 4, the District Court for the Northern District of California ruled on Prop 8 and the issue of gay marriage in the case of Perry v. Schwarzenegger. Judge Vaughn Walker ruled that Prop 8 violated the both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. Those on the defense who supported Prop 8 presented a fairly weak case, presenting only two witnesses, both of whom were ineffectual. Judge Walker was almost given no choice in ruling for the plaintiffs. However, all admit that this is just the first skirmish in an issue that may very well end up in the Supreme Court.
Church-state issues were briefly a part of the midterm elections, thanks to Christine O’Donnell. The Delaware Tea Party Candidate, in a debate with her Democratic opponent Chris Coons, questioned the presence of the concept of separation of church and state in the Constitution. She continued to press the issue even after Coons explained to her that the Religion Clauses of the First Amendment and Supreme Court cases had established the concept as a Constitutional principle. Many conservatives leapt to her defense, arguing that she was technically correct, and that she was misunderstood.
Throughout this year, France has been embroiled in a controversy regarding banning burqas and other forms of Islamic face coverings. The ban passed the lower house of the French Parliament in July, and passed the Senate in September. Naturally, Muslims in France have protested this law, citing the fact that their religious freedom is being violated. The last legal hurdle was cleared in October when France’s highest court ruled that the law was constitutional. The Court found that because the law did not restrain the use of burqas during worship, there was no violation of religious freedom.
In July, Argentina became the first Latin American country to allow gay marriage. The President of Argentina, Fernandez de Kirchner, supported this legislation, despite the strenuous objection of the Catholic Church. The Catholic Church organized several protests in the days leading up to the vote. While the Kirchners (her husband is the former president) have been accused of supporting this legislation because of its personal political benefits, they and others have argued that the time for this law has come. Argentina has shifted to more politically liberal mores and therefore this legislation reflects the changed sensibilities of Argentineans.
Late this year, a truly historic piece of legislation passed in Peru. The legislature in Peru passed legislation that will guarantee religious freedom for all citizens, codifying a principle that was already present in Peru’s Constitution. The law protects both public and private expressions of religion, unless the exercise of that right infringes on the rights of others or causes a public disturbance. Furthermore, the law outlaws any type of discrimination against anyone on the basis of religion and establishes religious equality, providing these benefits to all citizens, regardless of their religious preference.
This year has seen an interesting shift in the status of religious liberty around the world. Nations that have largely been seen as the stalwarts of religious freedom, such as the United States and countries in Europe, have taken some steps to restrict the religious freedom of religious minorities and the irreligious, with varying amounts of success. However, countries that have historically been described as unwelcoming to religious minorities, such as countries in Latin America, have taken steps to extend freedoms to those less fortunate.
Jason Hines is an attorney and doctoral candidate at the J.M. Dawson Institute of Church-State Studies at Baylor University.