One of the amazing things about the Constitution is that our Founding Fathers had a foresight to imagine the kinds of issues we're facing today as the American people. They provided ways that we can rectify these situations, especially important now as we deal with homeland security and this war on terrorism. So the Constitution has served and continues to serve us well. However, there is some misunderstanding on church/state separation that I think is significant. The phrase "separation of church and state" is not even used in the Constitution. Nevertheless, there are two basic conflicting views. The accommodation view, which we hold and which we believe the Founding Fathers held, says that government cannot enforce a certain religion on people - the Constitution protects the free exercise of religion; this is why we have the Establishment Clause in the Constitution. Then there's the view of strict separation, which the ACLU holds, because they think that their view has the support of the Constitution. But church/state separation was never meant to exclude religious expression from public life. The Founding Fathers never intended to prevent anyone from saying the Pledge of Allegiance in a public school or other public arenas simply because it has the phrase "...one nation under God." Nor did they intend to ban the posting of the national motto, "In God We Trust." Many of these cases concern a general misunderstanding of the law. The founding fathers would never have imagined religious expression creating a constitutional crisis. Yet the ACLU thinks the constitution prevents religious expression, and some courts have agreed with them on some points.
- How can I learn which candidates represent my views on the most important moral issues?
- Is it legal for a city to deny a zoning permit to a church because the building they wish to acquire is in a commercial, agricultural, or residential zone?
- Can the government use eminent domain to take over a church?
There is material available. Many voter guides contain the voting records of political candidates running for office at all levels of government, and your church is allowed to prepare and distribute voter guides. In fact, it is a good idea to do so. However, there are strict, though simple, legal guidelines on what must be presented and what cannot be presented in these voter guides. The guides must include a broad range of topics and must include all candidates running for election. They cannot focus only on ìagendaî issues, such as abortion or same-sex marriage, and they cannot endorse particular candidates. Because of these and other restrictions, a careful study would be necessary on your part to determine which candidates have best represented your views on subjects of particular interest to you in their voting record of the past. However, there is no voting record for new candidates, and a candidate's past voting record does not insure future voting if reelected. There are cases of constituents feeling betrayed by candidates they had helped to put in office. Based on your comments and questions, it sounds as if you would do well to do the research on local candidates yourself. Call their offices, ask for printed materials or a face-to-face meeting and learn to speak out as a private citizen for or against candidates based on the answers you learn. You are not prohibited from focusing on particular issues of concern to you. You may ask people you respect, such as your pastor, to discuss personal opinions with you on who to vote for. However, your pastor is prohibited from endorsing a particular candidate from the pulpit. He may speak against abortion and same-sex marriage from the pulpit, but he cannot tell you which candidates to vote for as a pastor representing a church.
A church cannot be denied a zoning permit because it's in a commercial zone and the city would lose tax revenue by granting the permit. The reason that tax benefits are given to churches, and to religious organizations generally, is the idea that they give something back to the community -- whether it's after-school childcare, feeding the homeless, meeting the needs of the less fortunate in the community, etc. That's the reason you give tax-exempt status, and that overrides the need for tax revenue. There's a piece of legislation that was passed by the House and the Senate and signed by the President in 2000, called the Religious Land Use and Institutionalized Persons Act (RLUIPA). Under RLUIPA, cities cannot zone churches out of commercial areas without what's called a "compelling governmental interest." So, they can't just deny your request for a zoning permit simply because the building is in a commercial zone. So what kind of tactics might the city use? The normal process goes something like this: The first line of attack may come from either the Zoning Commission or your Building And Use Commission of the city. If they stop you at that level, you can usually go to the full County Commission and get a variance. If they deny the variance, I'd say that's a good way to get into court.
Under an eminent domain process - assuming that your situation qualifies for eminent domain - the government has to give you fair market value for your property. The Fifth Amendment to the United States Constitution says that private property cannot be taken for public use without "just compensation." Now, you've got to get lawyers in there to negotiate what that fair market value is. A lawyer might also be able to fight the eminent domain under a statute called the Religious Land Use and Institutionalized Persons Act (RLUIPA). There are ways in which your church can be protected, and we should be protecting the churches from being seized through eminent domain.
- Should public school students be required to read a book about sex and drug abuse?
- Can public school students pray at school, even over their food at lunchtime?
- Can public school students bring a Christian book, or even the Bible, to read during "free reading" time?
- What are the rights of public school teachers in sharing their faith?
I'll tell you one thing you need to do is call the school superintendent; there's no doubt about it. Your husband needs to calmly say that this is not appropriate reading material for your daughter and you want alternatives put in place. She has the right to opt out of this particular reading assignment, and the teacher has to give her an alternative reading assignment. They cannot insist on her reading something that violates her sincerely held religious beliefs. You need to go in to the school principal or the school superintendent, depending on the size of the school, and say you've got a problem with this particular book. You've reviewed the material, your daughter has reviewed the material, and she wants to opt out. She should not be required to complete the assignment. They should respect that, and we've had great success in that regard.
Allowing a student to pray is not a violation of the law. In fact, representatives of the school system are violating the law if they told him he could not pray - the Supreme Court says you cannot show hostility towards religious expression. The Supreme Court has also held that that students have the right to pray before, during, and after the school day, and nothing in the Supreme Court's precedents or the Constitution prohibits that. The important thing is that praying cannot be done in a way that's going to disrupt the classroom - or in your son's case, the lunchroom. But he can certainly pray quietly, even if a couple of other students want to pray with him. The test is whether it causes disorder to the school environment. Assuming it does not, there should be no problem whatsoever. There are also Department of Education guidelines dealing specifically with this. They are posted to our Website at aclj.org. Any student has the right to say grace. They can even pray for their food with friends during a lunch period, and the school should not be interfering at all with that right to pray. This seven-year-old was within his constitutional rights to engage in saying grace before a meal without fear of reprisal. In the Tinker case, the Supreme Court said, "... students [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." A few years ago, in a case I argued McConnell v. FEC, the Supreme Court reaffirmed once again -- unanimously, by the way, the most conservative members of the Court and the most liberal -- that "[m]inors enjoy the protection of the First Amendment." And as I said, the Department of Education guidelines have been very clear on this as well. I'm sure once the public school system understands the Department of Education guidelines, as well as existing federal law, they'll comply. They really have no choice but to comply and allow prayer to take place.
If students are allowed to bring in reading material to read during free time, he can bring a Bible story or a Christian book without the fear of the teacher having to censor it. The teacher is not under an affirmative obligation to remove the reading material of a student who decides to bring in a Christian book for reading time. It's perfectly appropriate to bring in a Bible or other Christian book if students are allowed to select one of their choosing. There are very specific Department of Education guidelines on this that say the student has the right to have and use this material. Both these guidelines and federal case law provide that during study hall or free time, or during lunchtime, your child can freely read the Bible if he chooses. Students can also have after-school Bible study groups. Some of those groups meet during the school lunch period or club breaks during the day. But the bottom line is, the Supreme Court and the lower courts have been consistent in declaring that the Bible cannot be banned or treated as if it's pornography. You need to contact the school administration and make sure they are aware of your son's situation and that they and the teacher have read the Department of Education guidelines. I think that will be a big help for you and solve a lot of this problem.
Let's take for instance science class -- a discussion of the origins of mankind. You could approach it by explaining a variety of theories concerning the origins of mankind. That could include a creation account or an account based on evolution. Again, the idea is to teach them as theory, not as fact. So you are given broad rights here. You could certainly answer questions -- and the Bible, as the Supreme Court has said, can be used in classes for history, literature, or poetry. It's perfectly appropriate there; it's not a forbidden book, it's not outside the realm of what's acceptable. And of course, courses teaching about religion are constitutional. It's when you have an enforcement of a religious practice that you're crossing the line. So for example, when you initiate the discussion, that's where extra caution must be used; and in that particular situation, you want to make sure it's a dialogue, not indoctrination.
The Supreme Court has upheld buffer zones outside abortion clinics, and that's all that these states are asking to do here: they want to set up buffer zones around military funerals, in order to keep these protesters away. We are talking about people who are sometimes emotionally distraught, grieving families and friends, people that need to be protected from the haranguing of protests. And so, for the same reason the Supreme Court has upheld buffer zones in certain limited circumstances like abortion clinics, I think the Supreme Court, should it ever get one of these military funeral protest cases, is going to uphold a buffer zone here as well.
This is a significant issue, and I want you to know that many chaplains are having this difficulty. This is a religious freedom issue. We're not just fighting for Christian chaplains but for all different types of religious chaplains here. These chaplains are real people, and this is affecting the military significantly. There should not be a problem with baptizing soldiers who request baptism either. It's chiseled in stone on Jefferson's monument: "Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?" If you think your liberties come from God, and you think that it's wrong for terrorists to kill innocent people and to try to take freedom away by terror, then you're going to fight for freedom. That's a very practical side of what our nation has always stood for. We cannot allow this erosion of our basic First Amendment rights. We must reestablish the freedom of our chaplains and of our officers. We are communicating with the White House and the Armed Forces. You can help by contacting your congressmen and senators.
I know Jews for Jesus, Chosen People Ministries and other groups do large outreaches each year. And a lot of churches do outreaches, especially in parks. You'll see summer gospel series, where they'll do music and then there will be some preaching. And those areas are open for free speech. Now, there may be regulations that you need to comply with, letting the law enforcement officers know that you're going to be there. Or if it's a larger gathering, you may have to get a reservation for the park facilities. But you can't be denied the right to do that. They just have normal time, place and manner restrictions as they're called. Private shopping centers, though, are generally private, and they're off-limits to free speech, unless the owner of the mall consents. In some states they allow it more broadly, but generally not. But the public streets and sidewalks, the public parks, those are open for free speech. And each year you see a lot of very creative community outreaches in order to share the gospel.
- Are employees legally required to attend a diversity-training program that violates their sincerely held religious beliefs?
- Can you pray at work?
- Can a private employer forbid me from posting a passage of Scripture in my personal workspace?
- If a person does not want to work on Sundays due to sincerely held religious beliefs, what are his or her rights?
Your employer should have given you advance notice of the nature of the training; there's no doubt about that. You have the right to opt out of objectionable diversity training if it violates your sincerely held religious beliefs. Generally, I tell people required to attend a diversity-training program to go to the human resources department and find out the curriculum for the program. After reviewing the program, inform them of any parts that violate your sincerely held religious beliefs. Remember the key words: "my sincerely held religious beliefs." Legally, if the training violates your sincerely held religious beliefs, they have to allow you to opt out. In this case, they probably did violate what's called Title VII, by requiring you to participate in a program that violates your sincerely held religious beliefs without advance notice. You have the right to opt out in the future. For now, I would notify the human resources department in writing that you feel your rights were violated. Put them on notice that you're not going to allow this to happen again. Good law has been developed on the ability of employees to opt out of an objectionable diversity-training program.
Yes, you can absolutely pray at work. There is this general misunderstanding that prayer activity in the public workplace -- or even in private companies -- is somehow illegal and unauthorized, but that is not the case at all. Prayer is not illegal, unauthorized, inappropriate, nor improper. You can even have Bible studies at work. A lot of companies have staff Bible studies going on. You can't require that employees attend, but they can attend without any problem.
If they do allow personal statements, etc., to be posted in employees' individual workspaces, then they really should not be asking you to take down the Scripture that you've posted in the cubicle where you work. Now, it's a private employer, so they can define what is permissible and what is not. But I will tell you that when you look at a situation like this, generally the problem is that the human resources office thinks they might somehow be creating a hostile work environment by allowing you to keep up a Scripture reference in your workspace area. Here's what you've got to understand: In a private place of employment, they can set the rules on this type of thing. Generally they're supportive, and you can get the situation worked out. But you don't legally have the authority to mandate putting that information up on the company's web site, or up on a bulletin board at the workplace, or even in your private cubicle, as in your case, because they can have their own rules and regulations.
You should not be fired because you can't work on Sunday. They're supposed to make a reasonable accommodation for your sincerely held religious beliefs. You cannot fire somebody because of their faith or religious practice; or if they don't have a faith, you can't fire them for that either. Religious beliefs should not be a factor in someone's job review, and certainly being fired for one's religious beliefs is clearly wrong. The employers would have to show that they couldn't make a reasonable accommodation, where someone would work for her on that particular day. And that's a pretty high burden for them to show. I don't know the nature of the business your daughter worked for, but what we need to do in a situation like this is take a look at all the facts, because these types of cases are very fact specific. However, generally speaking, you shouldn't be terminated because of your sincerely held religious beliefs.
I agree that European law should not be forced upon the United States Constitution. Justice Thomas and Justice Scalia have been very critical of members of the Court citing international law in its precedents interpreting the US Constitution. The issue of judicial opinions citing the European Court of Human Rights has a lot of people concerned. The ACLJ has a sister organization, the European Center for Law and Justice, in Strasbourg, France to deal with European law. We've done religious liberty cases at the European Court of Human Rights, and we've won many of them. But I do not like this trend of interpreting the US Constitution based on foreign law. It makes absolutely no sense. First of all, they don't have the same constitutional framework as we do in the United States, and litigating cases in Europe is completely different from litigating here. We need to continue to pressure these justices, but they're appointed for life. They are not up for reelection, so they can make these decisions. Nominating the right justices to the courts is essential. As I said, we've got offices in Europe; if that's going to be the trend, we're going to be there fighting it out in Europe as well.