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Summer 2009 Table of Contents

Raising Cain at the Supreme Court

LAW's Jay Wexler toured church-state battlegrounds

| From Explorations | By Jessica Ullian

Jay Wexler spent six months traveling around the country to meet the people involved in the Supreme Court's most contentious church-state cases. Photograph by Kalman Zabarsky

In 2006, a lawyer walked into a bar and came out with a Santería priest, an Amish farmer, a Hasidic school superintendent, and a man who sued the state of Texas over the Ten Commandments.

The lawyer was Jay Wexler, a School of Law professor, the bar was Grendel's Den in Cambridge, Massachusetts — and technically speaking, the religious motley crew didn't actually follow him out the door. But a barroom conversation about a 1982 U.S. Supreme Court case that pitted Grendel's against a local church seeking to revoke its liquor license prompted Wexler to think about the people and places that have figured in Supreme Court cases about separation of church and state.

The Amish farmer, for example, Adin Yutzy, is the last living plaintiff in Wisconsin v. Yoder, a 1972 case about whether Amish children could claim exemption from compulsory education laws. (They can.) Ernesto Pichardo, the Santería priest, figured prominently in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, a 1993 dispute over whether to allow South Florida's Santería practitioners to kill animals for ritual purposes. (The court ruled that the city's effort to create an ordinance banning only ritual killings was unconstitutional.)

That chat in Grendel's Den ultimately resulted in Holy Hullaba­loos: A Road Trip to the Battlegrounds of the Church/State Wars, published in July by Beacon Press. Part travelogue, part legal analysis, the book is Wexler's account of a 2007 road trip to eight sites around the country where religion and law have collided and the Supreme Court has intervened. Wexler, who has a master's in religious studies from the University of Chicago Divinity School and clerked for Supreme Court Justice Ruth Bader Ginsburg, says he hoped to get a firsthand look at the disputes he's taught in the classroom, all of which have emerged from the religion clause of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." As he points out in Holy Hullabaloos, it's a short sentence that has probably caused more controversy than any other in American history.

"The main issues are, first, when can a minority religious group with a unique practice or belief get out of a general law?" Wexler explains. "The other issue is how much can the state support religions? Can the state put up a monument of the Ten Commandments or a crèche at Christmas? Can it teach reli­­­gious ideas in a classroom, like creation science? Can there be government-sponsored religious exercise, like prayer at high school football games?"

Six months and thousands of miles later, Wexler's views about keeping church and state separate — and whether the Supreme Court has ruled correctly — had changed only a little. But his beliefs about the need for an ongoing (and if possible, lighthearted) dialogue about religion and law were stronger than ever. He spoke to Bostonia about why drawing the line between the two causes such a ruckus.

Bostonia: The Supreme Court cases on church-state boundaries often are over public education. Why does that issue incite people?

Wexler: The schools are where we get to say what we believe in and what we want our children to learn, so it makes for a really fertile battleground. We have this ideal of public education, and that's where we instill values in our kids — but inevitably, those values will conflict with someone else's values. And then there's a battle over who gets to instill what values, and is there an exit from the system, and if so, who's going to pay for it.

But you don't think it's possible for government to take a totally neutral position on religion in education?

People have this idea that schools should be neutral to religion, but the fact is that people believe all sorts of things, so it's impossible for the government, which takes all sorts of value positions, to be neutral and respect all of those beliefs. Teaching about evolution is not neutral to people whose religious beliefs tell them evolution did not occur. If they believe that the world was created in seven days and that people were created in the form they're in today, teaching them about evolution is contrary to their beliefs. There's no way around it.

You visited the sites having a clear perspective on whether the Supreme Court decisions were right or wrong. Did anything change?

My view on Kiryas Joel [a village in Orange County, New York, founded by Orthodox Jews of the Satmar Hasidic sect]. I'd always imagined it was a place with a lot of Satmar Hasidic Jews and a small population of people who were not Satmar, so I always thought the arrangement to let the village operate its own school district was problematic, because it gave the Satmars political power over people in the community who were not Satmars. Now I don't think that's the case at all — it's a completely homogeneous, completely unique place. When I teach it now, I don't make the suggestion that the court was wrong.

Did making the trips and meeting these people affect your teaching in other ways?

To hang out with the Amish in Wisconsin and the Santería church in Florida makes it come to life. Now, when I teach the cases, I have these people in my head — I'm teaching the Yoder case, and I'm imagining the guy I met in Missouri who tried to convert me. And rarely am I ever in a living room where there's a machete out and a Santería ritual going on in the back room. I don't know if my students care or not, but for me, it's impossible to think about the cases without thinking about that.

What did you learn that might surprise the general public?

People definitely don't know that the Senate starts off with a prayer every day, and there's a Senate chaplain who leads Bible studies that the senators go to. The chaplain's a great guy, and his prayers are really nice — I just don't think they should be in the Senate.

And the guy in Texas who sued to have the Ten Com­mandments monument removed from the capital grounds in Austin — I'm sure some people think anyone who sues over the Commandments thinks all religion's terrible, but that's not what this guy thought at all. He really struggled over whether to bring the suit. He just thought it wasn't appropriate for the government to be endorsing this one religious belief.

Religion can be a touchy topic — do you expect the book to upset people?

My guess is religious people will think that I'm too critical of religion, and atheists and separationists will think I'm too kind to religion. But I'm trying to suggest that it's possible to talk about these issues without getting too angry, that we can talk about them like we talk about anything else, and hopefully with a sense of humor.

You Asked, We Answered
Readers took advantage of our invitation to ask LAW's Jay Wexler about church-state controversies. Here are some of those questions, along with Wexler's responses.

QUnder section 107 of the federal tax code, a minister of the gospel is allowed to receive a nontaxable housing allowance as part of his or her compensation. The tax-free allowance is used to rent or buy a home and pay for utilities, insurance, and property taxes. The IRS has ruled that rabbis and cantors qualify as "ministers of the gospel" and can receive the tax benefits of section 107. It is not clear whether the IRS would treat a witch as a "minister of the gospel." It is my opinion that a witch should qualify under IRS regulations as long as he or she leads a religious congregation (coven) and performs what the regulations call sacerdotal functions. One of the requirements imposed by the IRS (this requirement is not in the statute) is that the minister of the gospel be licensed, commissioned, or ordained by an organization or institution. It is NOT sufficient that the individual is performing religious functions and was called by God to the ministry (e.g. Joseph Smith and the first Pentecostal preachers). Would you agree with me that section 107 is unconstitutional? — Michael Gompertz (LAW'75)

ABased on your description of section 107, I would say it sounds pretty questionable from a constitutional perspective. It would seem that the section gives a benefit only to religious leaders rather than to religious leaders and similarly situated non-religious individuals. Moreover, it would seem that the section benefits only certain religions and not others. The only way that such a provision could be constitutional would be if it were an "accommodation" of religion. The Supreme Court has said that the Congress or other legislative body can lift a substantial burden on the exercise of religion if doing so is not overly burdensome on nonbeneficiaries and is given in a fairly nondenominational manner. It's hard to see how this tax break relieves a substantial burden on the exercise of religion. Since it's not a valid accommodation of religion, it's hard to see how it is constitutional.

QWhat can one do to bring a case against the U.S. Senate that will not allow any form of formal prayer to be allowed in Senate (or any other federal, state or city government) official or non official meetings/gatherings? — Ruth Proller (CAS'57)

ABringing such a lawsuit is quite difficult, because the plaintiff would have to show that he or she is concretely and directly affected by the prayer. This is a doctrine that the Supreme Court calls "standing," and it is intended to enforce the constitutional requirement that the federal courts may only hear "cases and controversies." The Court has interpreted this requirement to mean that plaintiffs cannot bring abstract or theoretical challenges to government practices. For someone to successfully sue the Senate, for example, she would probably have to show that she works at the Senate and has to sit through the prayers on a regular basis or that she visits the Senate regularly and has watched a number of prayers in the past and plans to watch a number more in the future. That kind of plaintiff could probably make out the personal, actual, concrete injury that the Supreme Court requires for standing.

QWas wondering if you would care to comment on the significance of Abingdon v. Schempp and whether the issues decided in the case have become "settled law." — Stanley Fogleman (CAS'78)

ASchempp is one of the two cases from the 1960s in which the Supreme Court made it clear that government-sponsored or led prayer in the public school classroom is unconstitutional. The case involved the reading of the Lord's Prayer as well as ten Bible verses each morning in a public school, and the Court said this was invalid under the First Amendment. The decision is very unpopular in some circles, of course, but in my view it is quite clearly correct. The government should not be able to dictate that students participate in some specific prayer in the classroom. This is not to say, of course, that students can't choose to pray themselves before class or after school or something. The harder constitutional cases, in my view, are those that take place outside of the classroom, such as at a graduation ceremony or sporting event.

QI'm curious as to your opinion of the Tenafly Eruv Association v. Borough of Tenafly over the installation of an eruv for use by Orthodox Jews. I believe that the Supreme Court refused to hear the case, making the Appellate Court's decision that the law should adopt a stance of neutrality in these matters the final word. — Howie Shapiro (GRS'02)

AThe case of Tenafly Eruv Association v. Borough of Tenafly from 2002 involved a group of Orthodox Jews who wanted to establish an eruv in their community (an area within which it is acceptable for Orthodox Jews to push strollers, carry canes and walkers, etc. on the Sabbath) by attaching thin black strips of plastic to certain telephone poles in the community. Borough officials ordered that the strips be taken down, ostensibly because of a local ordinance that prohibited the placement of any sign or other matter on any telephone pole, tree, etc. within Borough limits. The Orthodox Jews sued, claiming that the Borough had previously allowed all sorts of attachments to stay up on telephone poles, from house number signs to holiday lights to ribbons representing support for a particular political viewpoint. According to the plaintiffs, the Borough's selective enforcement of the ordinance constituted discrimination against religion and was thus unconstitutional. The Third Circuit Court of Appeals agreed, and since, as you say, the Supreme Court declined to hear the case, the decision stands as the final say on the matter.

The decision of the Court of Appeals is perfectly consistent, in my view, with the decisions of the Supreme Court, and the other Third Circuit cases on this issue. If the Borough had applied the ordinance neutrally and truly did not allow anyone to put up attachments or signs on the telephone booths, then it would have been within its right to require that the black strips be taken down as well. This is the holding of the much maligned Smith decision that holds that government can enforce neutral laws of general application against religious believers even though the laws might burden their religious practices. On the other hand, the Court has said that the government may not discriminate against religion, and that's what the record suggested was happening here. If the government was really concerned with keeping its telephone poles clean, then why didn't it enforce its ordinance against the house sign numbers and the holiday displays? The reason is that the Borough only cared about the ordinance when it became a tool for it to discriminate against religion, and the court rightly called them on it.

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