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Monday, February 20, 2012

Religion and the Supreme Court -- Whacking Chickens and Abusing Scholarship


How are elected officials supposed to deal with their personal conviction to the beliefs of a religion and effectively maintain the Constitutional charge of separation of church and state? 

The argument is as old as the country itself. Is the intent of the 1st Amendment really referring to restricting the establishment of a National religion? What is considered "prohibiting the free exercise" of religion? These two Supreme Court cases may help you wade through the murky waters involving the state and the personal freedom to exercise religion. 

The cases are summarized in these two brief paragraphs. (Doug Linder, "Exploring Constitutional Conflicts," http://law2.umkc.ed, 2012)

"In 1993, in Church of Lukumi Babalu Aye v Hialeah, the Supreme Court took a case which it concluded showed an attempt by government to specifically target an unpopular religious practice, and struck down the laws in question--all designed to deal with animal sacrifice practiced by a large but largely clandestine religion of mostly ex-Cubans.  The Court unanimously concluded that the ordinances of Hialeah violated the Free Exercise Clause.

"In 2004, the Supreme Court in Locke v Davey considered the reach of Lukumi Babalu in a case involving a Washington State scholarship program for gifted students.  The program allowed students receiving a state scholarship to pursue any major, with one exception: a degree in devotional theology.  When Joshua Davey, a scholarship recipient, was denied funding to pursue a theology program at Northwest, a private religious college, he sued, alleging that Washington had violated his Free Exercise right.  Chief Justice Rehnquist, writing for a 7 to 2 majority, found that the Free Exercise Clause and Establishment Clause, read together, offered enough "play in the joints" to allow Washington to exclude a major in devotional theology, "a religious calling" as much as "an academic pursuit," from the list of endeavors it will support with taxpayer funds.  Justices Scalia and Thomas disagreed, finding the exclusion to be a clear violation of Free Exercise principles laid down in Lukumi Babalu."

These two very different cases involved two very different religions -- one particularly "bloody" but protected, and one Christian but deemed unworthy of taxpayer support.

In the Church of Lukumi Babalu Aye v Hialeah, the city council of Hialeah established ordinances that prohibited engaging in certain kinds of animal slaughter not for the purpose of food consumption soon after they learned that this church practicing Santeria was planning to locate there. Santeria is a religion practiced in the Americas by the descendants of Africans.

According to the Supreme Court, the ordinances were neither neutral nor generally applicable. The ordinances had to be justified by a compelling governmental interest, and they had to be narrowly tailored to that interest. The core failure of the ordinances were that they applied exclusively to the church. The ordinances singled out the activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve their stated ends.


In short and common terms, 
the Court ruled that Lukumi Babalu 
could kill chickens as a sacrifice 
in the name of a religion despite the ordinances of Hialeah .

In brief, the Court's decision in Locke v Davey
 upheld Washington's rule to exclude 
a gifted student from receiving a scholarship
funded by the public while pursuing 
a major in devotional theology. 

Still, some would say the 7-2 vote in Locke v Davey illustrates the uncertainty of the necessity of the government to deny all religious affirmation. This decision was certainly not a close vote; however, the dissenting opinion provides thought-provoking support for a different interpretation of 1st Amendment intent concerning religion.

It seems very perplexing that the Supreme Court would uphold Washington State's denial to fund a degree in devotional theology on the grounds that "a religious calling" for an "an academic pursuit" must not be given State aid.

So, this decision did not violate the student's free exercise right? The majority of the Court said this policy reflected the state’s interest against the establishment of religion. 

What are the implications for state-sponsored scholarship programs in higher education? Very simple -- the ruling recognized that states can impose limits on the amount of scholarship aid they provide to students who attend religiously affiliated institutions of higher learning.

The Court required only that the state show a rational basis for the different treatment afforded to theology students. The Court added that the state had a substantial interest in not funding degrees in theology because the state constitution forbade such aid, which has been interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry.

In dissenting opinion, Justice Scalia argued, however, that generally available benefits are part of the “baseline against which burdens on religion are measured.” Because the Promise Scholarship Program funded training for all secular professions, Scalia noted that the State’s “philosophical preference” to protect individual conscience is potentially without limit,


Scalia believed Washington had created a generally available public benefit, whose receipt was conditioned only on academic performance, income, and attendance at an accredited school. But, it then carved out a solitary course of study for exclusion: theology. Scalia said Davey sought only equal treatment—the right to direct his scholarship to his chosen course of study, a right every other Promise Scholar enjoyed.

Justice Thomas agreed with Scalia and wrote separately to note that, in his view, the study of theology does not necessarily implicate religious devotion or faith. The contested statute denied Promise Scholarships to students who wish to pursue “a degree in theology.” But the statute itself does not define “theology.” And the usual definition of the term theology is not limited to devotional studies.

Are you confused yet as to the rulings? 
Pretty much you can kill a chicken 
for Santeria sacrifice in Florida 
but you can't ride a scholarship 
to study Christian devotions in Washington.


Despite the obvious -- taxpayers do not have to support religious affiliations but cities cannot prevent people from privately engaging in generally undesirable religious practices -- I think the intent stinks (unless you believe in animal sacrifice and limiting educational opportunities for smart church kids).

Being a Christian in belief and in practice is not easy. Everyone understands that. If you don't, just read the Bible and try to live by its standards. But why must we make Christians suffer and persecute them for the conviction of their beliefs in cases where their intent is clearly not to establish a National religion or to upset American justice? 

And, how the government expect Christians to leave their faith on the doorsteps of institutions of State? Isn't this especially hypocritical in a land founded upon the tenets of freedom of religion? 

* The United States service men and women frequently pray upon the battlefield while risking their lives to preserve our governmental freedoms.

* Coaches and players of pro, college, and high school sports teams typically pray for safety and protection while engaging in competitive contests that strengthen American youth. 

* In public speeches, Presidents have repeatedly called upon their God to guide them with difficult decisions and bless the operations of the nation of the United States.

* Many schools still sponsor Bible Clubs and other religious-affiliated groups, and all schools recognize the observance and customs of religious holidays as part of their curriculum of instruction.

* The Federal Government observes Martin Luther King, Jr. Day as a United States federal holiday marking the birthday of Reverend Dr. Marin Luther King, Jr. while recognizing his tremendous achievements based on religious teachings and actions.

Today, it is fashionable and even commendable to some to demonize Christians as the group responsible for war, violence, and twisted thinking. People now are encouraged to respect and consider atheist views as logical philosophy, yet they are increasingly expected to keep their "silly, fictional Christian beliefs" under wraps. How sad that the religious inequality shown toward Christians in America is a product of those who defiled their own beliefs -- pilfered money in the name of God, trivialized basic Christian concepts, and sinned without remorse or confession. 

"Be the best that you can in all that you do." This is an adage that entails believing in yourself and committing yourself to a calling with thought, deed, and action. Certainly politicians in the United States ally themselves with the teachings of living a Godly life. As government officials, many of these people now seem to reap the benefits and denounce the shortcomings of religious affiliation to maintain popularity. 

Truly "being the best" Christian figure of public service requires strength of conviction. It's too bad Joshua Davey was not allowed the support of the same public he wanted to minister because "his religious calling" happened to be somehow "imposing" on the State. 

Think of how many other less productive majors were eligible for the public money. To me, Davey had already proven himself worthy of consideration and approval through his student record. This extremely controversial type of division of church and State is not what the Framers had in mind. Unfortunately, according to the Supreme Law of the Land, Davey had to suffer the consequences of the verdict. That's American justice, I guess. God bless those unfortunate uneaten chickens.

 Joshua Davey

* Update on Joshua Davey:  He enrolled in Harvard Law School in 2003, shortly before the case was argued before the Supreme Court.He graduated in 2006, having served as a managing editor for the Harvard Journal of Law & Public Policy in his final year. With the exception of a one-year clerkship on the 4th Circuit Court of Appeals, Mr. Davey has practiced as a commercial litigator with McGuireWoods and its predecessor firm since graduating from Harvard Law School.
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