Legal Developments

Father’s First Amendment Rights not Violated by Requirement to Arrange for Child’s Attendance at Roman Catholic Church

Can a noncustodial parent who is a member of the Baptist faith be required, during

Richard R. Hammar, Attorney, CPA

Bio

State: Illinois
Categories: First Amendment, Freedom of Religion

Can a noncustodial parent who is a member of the Baptist faith be required, during periods of visitation, to arrange for his minor child's attendance at the Roman Catholic church in which she was being raised by her mother?

Yes, concluded an Illinois appeals court. The father argued that the trial court's order, insofar as it directed him as the noncustodial parent to take his daughter to a Roman Catholic church and not to his Baptist church violated his constitutional right to religious freedom.

The court, in rejecting this claim, noted that the father was not required to "observe the laws of the Roman Catholic church, but only (1) to make the transportation arrangements for his 7-year-old daughter to fulfill her religious obligation when it falls during his visitation periods; and (2) not take the daughter to religious services other than those approved by the custodial parent. We find nothing in the order which would violate the father's first amendment rights to the free exercise of his religion. Rather, the order was clearly directed to the accommodation to be made in the child's best interests given that the custodial parent … has the right to direct the educational and religious training of the child, which in this case was in the Roman Catholic faith." In re marriage of Tisckos, 514 N.E. 2d 523 (Ill. App. 1987)

Legal Developments

Court Struck Down Zoning Ordinance Used to Prohibit Religious Meetings in Private Residences

A federal court in Connecticut struck down a zoning ordinance that was used to prohibit

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Freedom of Religion, Zoning

A federal court in Connecticut struck down a zoning ordinance that was used to prohibit religious meetings in private residences.

An individual conducted three meetings each week in his home, which were attended by about ten persons. In response to a neighbor's complaint, the city notified the homeowner that no further religious meetings could be conducted in his home unless he received city approval. The city cited a zoning ordinance that required city approval of any use of property for religious purposes. No standards were set forth in the ordinance to guide the city's exercise of its discretion.

The court held that the ordinance was void on account of "vagueness." In particular, it did not "assure with certainty whether one may hold Passover Seder in his home, whether he may light a Hannakuh Menorah, meet with a group of youths in one's home to prepare them for the reception of the sacraments of confirmation or communion, or gather with friends to discuss the Bible."

This lack of clarity, and the absence of standards to guide the city in the exercise of its discretion, rendered the ordinance unconstitutional: "The regulation under review, is one which gives an administrative official discretionary power to control in advance the right of citizens to exercise constitutionally protected activities—specifically the free exercise of religion and the right to freely associate with others—and as such it is clearly invalid as a prior restraint on the exercise of such activities." Nichols v. Planning and Zoning Commission, 667 F. Supp. 72 (D. Conn. 1987)

Legal Developments

Court Upheld Ban on Hare Krishnas from Soliciting Donations at Traffic Lights

A federal court in Louisiana upheld the constitutionality of a municipal ordinance that barred Hare

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

A federal court in Louisiana upheld the constitutionality of a municipal ordinance that barred Hare Krishna adherents from soliciting donations from occupants of motor vehicles temporarily stopped at traffic lights.

The adherents solicited donations during the Christmas season, while dressed in Santa Claus costumes, from drivers stopped at the busiest intersections in Baton Rouge. Though the solicitation of donations was admittedly a religious practice of the Hare Krishna adherents, it could be limited in the interests of public safety. "Mixing pedestrians and temporarily stopped motor vehicles in the same space at the same time is dangerous …. [Further], the driver who fumbles to unfasten his seat belt so that he can get into his pocket for a handful of coins to pass out the window and who does not move off promptly when the light turns green, holds up those vehicles behind him … invariably causing delays and disruptions to traffic." International Society for Krishna Consciousness v. Baton Rouge, 668 F. Supp. 527 (M.D. La. 1987)

Legal Developments

Public School Impermissibly Violated Church School’s Religious Freedom

A federal court in Massachusetts ruled that a state law requiring private schools to be

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Schools

A federal court in Massachusetts ruled that a state law requiring private schools to be "approved" by a public school committee impermissibly violated the religious freedom of a church school.

The court observed that "when, as here, there is a conflict between an individual's constitutional rights to the free exercise of their [sic] religious beliefs and the state's compelling interest in assuring that children are educated adequately, the government must show that it is using the least restrictive means possible to satisfy its interest."

The court concluded that reliance on standardized test scores and individual follow-up in appropriate cases "is a less restrictive, effective means of assuring that students are adequately educated." Since a less restrictive means of accomplishing the state's interest existed, the "approval" requirement was unconstitutional. New Life Baptist Church Academy v. East Longmeadow, 666 F. Supp. 293 (D. Mass. 1987)

Legal Developments

Court Reversed Ruling Books Constituted an Impermissible Establishment of the “Religion of Secular Humanism”

A federal appeals court reversed a lower court ruling on books used in the Alabama public schools.

Richard R. Hammar, Attorney, CPA

Bio

State: Alabama
Categories: Freedom of Religion, Schools

A federal appeals court reversed a lower court ruling that 44 books used in the Alabama public schools constituted an impermissible establishment of the "religion of secular humanism."

The court observed that

"examination of the contents of these textbooks … reveals that the message conveyed is not one of endorsment of secular humanism or any religion. Rather, the message conveyed is one of a governmental attempt to instill in Alabama public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance, and logical decision-making. This is an entirely appropriate secular effect."

The message conveyed by the textbooks was one of neutrality

"the textbooks neither endorse theistic religion as a system of belief, nor discredit it." Further, "if we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds."

Smith v. Board of School Commissioners, 827 F.2d 684 (11th Cir. 1987)

Legal Developments

Free Exercise Clause Not Violated by Textbooks Used in Public Schools

Federal court ruling addresses the issue of whether textbooks used in public schools, and that

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Schools

Federal court ruling addresses the issue of whether textbooks used in public schools, and that are offensive to the religious beliefs of certain parents and students, can be banned on the ground they violate the first amendment guaranty of religious freedom.

A federal appeals court (by a vote of 2-1) reversed a lower federal court ruling that the Holt, Rinehart, and Winston basic reading series used in grades 1 through 8 violated the constitutional rights of fundamentalist Christian parents. The parents had argued that the reading series contained numerous passages that violated their religious beliefs. In particular, they cited passages dealing with evolution, feminism, role reversal, and occultism.

The court concluded that a requirement that a person be exposed to ideas he or she finds objectionable on religious grounds does not constitute an impermissable burden on the free exercise of that person's religion. Rather, "governmental compulsion either to do or refrain from doing an act forbidden or required by one's religion, or to affirm or disavow a belief forbidden or required by one's religion, is the evil prohibited by the Free Exercise Clause."

The court found no compulsion in the requirement that students read the Holt series, and therefore there had been no violation of the guaranty of religious freedom. No one was required to affirm or deny a religious belief or to engage in a practice forbidden by a religious belief. On the contrary, parents were free to send their children to religious schools or educate them at home.

The court observed that "were the free exercise clause violated whenever governmental activity is offensive to or at variance with sincerely held religious precepts, virtually no govermental program would be constitutional." Therefore, to establish a violation of the constitutional right of religious freedom, a person "must show that the challenged state action has a coercive effect that operates against the practice of his or her religion." Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987)

Legal Developments

Court Rejected Claim that Employment of Chaplain at a Public Hospital Violated the First Amendment

A federal court in Iowa rejected the claim that the employment of a full-time chaplain

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

A federal court in Iowa rejected the claim that the employment of a full-time chaplain at a public hospital violated the first amendment's nonestablishment of religion clause.

The court acknowledged that a public hospital's employment of a chaplain violated the nonestablishment of religion clause, but concluded that such a practice was validated by the first amendment's other religion clause (guaranteeing the free exercise of religion). The court referred to decisions upholding the constitutionality of military and prison chaplains. Like military personnel and prison inmates, hospital patients often are isolated and restricted in the exercise of their religion.

The provision of a chaplain in all of these cases , concluded the court, is necessary to ensure that the constitutional right to freely exercise one's religion is protected. However, the court cautioned that the hospital chaplain's activities could not be unrestricted. The court held that the chaplain could not actively proselytize; counsel with employees, outpatients, or families not in the hospital for emergencies or "death-bed watches"; or have access to patients' medical records without the express approval of the patient or a guardian. Carter v. Broadlawn Medical Center, 667 F. Supp. 1269 (S.D. Iowa 1987)

Legal Developments

Constitution Bars Civil Courts from Resolving Disputes over Rules Set by Religious Organizations

Civil court barred from resolving a dispute over a parliamentary ruling made at the 1985 Southern Baptist Convention.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

A federal appeals court ruled that the United States Constitution bars the civil courts from resolving a dispute over a parliamentary ruling made at the 1985 Southern Baptist Convention.

Noting that the contested parliamentary action had been reviewed and upheld by the highest Southern Baptist tribunal, the court concluded that "where religious organizations establish rules for their internal discipline and governance, and tribunals for adjudicating disputes over these matters, the Constitution requires that civil courts accept their decisions as binding upon them." Crowder v. Southern Baptist Convention, 828 F.2d 718 (11th Cir. 1987)

Legal Developments

Court Ruled Priest Could Not Sue Catholic Hospital for Wrongful Discharge

In a significant decision, a California state appeals court ruled that a Catholic priest who

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion

In a significant decision, a California state appeals court ruled that a Catholic priest who had been discharged from his duties as a chaplain at a Catholic hospital could not sue the hospital for wrongful discharge.

The court observed that "the question of who shall fill the pastoral position is deemed so close to the heart of the religious purpose of the church or congregation as to be entirely an ecclesiastical matter protected from any secular judicial intrusion by the first amendment."

A chaplain at a church-operated hospital is subject to this rule, if his or her duties are primarily religious. Since "government standards have no place in selecting spiritual leaders," the civil courts cannot resolve lawsuits by discharged clergy who claim that their discharge was wrongful.

Presumably, the court added, the same rule might extend to any church employee whose role is primarily religious: "The free exercise of religion includes the right to run large religious institutions—certainly churches, seminaries, and schools, and hospitals, orphanages, and other charitable institutions as well. Such institutions can only be run through employees. It surely also follows that the churches are entitled to insist on undivided loyalty from these employees. The employee accepts responsibility to carry out part of the religious mission …. Churches rely on employees to do the work of the church and to do it in accord with church teaching. When an employee agrees to do the work of the church, he must be held to submit to church authority in much the same way as a member." O'Connor Hospital v. Superior Court, 240 Cal. Rptr. 766 (Cal. App. 6 Dist. 1987)

Legal Developments

Inaccurate Religious Claim not Subject to Fraud Charges

Church Law and Tax Report Inaccurate Religious Claim not Subject to Fraud Charges Richard R.

Richard R. Hammar, Attorney, CPA

Bio

State: Minnesota
Categories: Freedom of Religion

Church Law and Tax Report

Inaccurate Religious Claim not Subject to Fraud Charges

Richard R. Hammar

A federal district court in Minnesota threw out a lawsuit charging the Worldwide Church of God with fraud. The lawsuit alleged that the church taught that the world was coming to an end, and yet failed to act in accordance with this belief by recommending that persons take steps to prepare for the catastrophe. The court noted that the church teaches that “members must continue to live their lives normally and that deliverance to a place of safety would come only by supernatural means, not physical means.” This belief, concluded the court, is protected by the first amendment guaranty of religious freedom. Anderson v. Worldwide Church of God, 661 F. Supp. 1400 (D. Minn. 1987).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 1987 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Court Rulings on the Constitutionality of Including Invocations at Public High School Graduation Ceremonies

Two courts have ruled on the constitutionality of including invocations at public high school graduation

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion, Schools

Two courts have ruled on the constitutionality of including invocations at public high school graduation ceremonies, with mixed results.

A California appeals court ruled that the inclusion of a religious invocation in a public high school graduation ceremony violated state and federal constitutional provisions prohibiting the establishment of religion. In reaching its conclusion, the court applied the three-part test often employed by the United States Supreme Court in deciding whether a challenged governmental action violates the first amendment's nonestablishment of religion clause: (1) the governmental action must have a secular purpose; (2) it must not have a primary effect that advances or inhibits religion; and (3) it must not create an excessive entanglement between church and state.

The inclusion of invocations at public high school graduation ceremonies violated all three of these tests, concluded the court. The court also observed that "the citizens of this country, and perhaps of this state in particular, are a people of highly diverse cultural, ethical and religious backgrounds," and that "any religious invocation … therefore almost certainly will not comport with the beliefs of a number of those persons present, and may in fact be offensive to some." Freedom to believe and to worship, concluded the court, "includes the freedom not to engage in the religious practices of the majority." Bennett v. Livermore Unified School District, 238 Cal. Rptr. 819 (1987).

A federal appeals court also struck down the inclusion of invocations and benedictions at public high school graduation ceremonies. However, the court acknowledged that invocations and benedictions would be constitutionally permissible if they were similar to the "civil invocations or benedictions used in public legislative and judicial sessions." Permissible invocations, noted the court, would be nonsectarian, nonproselytizing, and solemnizing.

The invocations and benedictions that the court invalidated employed the language of Christian theology and prayer, often invoking the name of Jesus Christ as the Savior. Such language "symbolically placed the government's seal of approval on one religious view—the Christian view," and was therefore impermissible. Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir. 1987).

Legal Developments

Operation of a Childcare Facility, Even By a Church, Is a Secular Activity

A federal district court in Virginia held that state licensing of church-run childcare facilities to

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Child Abuse Reporting, Freedom of Religion, Schools

A federal district court in Virginia held that state licensing of church-run childcare facilities to certify compliance with health, safety and welfare standards would not burden a church's free exercise of religion.

The court concluded that "the operation of a childcare facility, even by a church, is a secular activity not entitling it to free exercise protection." Even if such as activity were deemed to be religious, the state's licensing requirements would be justified on the basis of the state's compelling interest in protecting the health and safety of small children.

The court also rejected the contention that church-run childcare facilities should be exempted from the law's financial disclosure requirements, prohibition of corporal punishment, child abuse reporting requirement, and program content requirements. Forest Hills Early Learning Center, Inc. v. Lukhard, 661 F. Supp. 301 (E.D. Va. 1987).

Legal Developments

Court Upheld the Validity of Proxy Votes in Church Business Meetings

During a regular church business meeting, a member moved to terminate the services of the

Richard R. Hammar, Attorney, CPA

Bio

State: Alaska
Categories: Church Business Meetings, Clergy - Removal, Freedom of Religion

During a regular church business meeting, a member moved to terminate the services of the church's minister. Of the members present, 42 voted to retain the minister, and 32 voted to remove him. In addition, one of the 32 dissidents produced a list of 57 proxy (absentee) votes to remove the minister from office. The moderator of the business meeting refused to recognize the proxy votes, and the attempt to remove the minister failed.

The dissident members thereafter filed a lawsuit seeking a court order upholding the validity of proxy votes in church business meetings. A state trial court ruled against the dissidents, and the case was appealed directly to the Alaska Supreme Court.

In an important decision, the court reversed the trial court and held that the proxy votes should have been counted. It based its decision on the provisions of the Alaska Nonprofit Corporations Act (under which the church had incorporated) which authorized proxy voting by members of nonprofit corporations absent a contrary provision in an organization's charter or bylaws.

The court rejected the church's claim that requiring it to recognize proxy votes violated the constitutional guaranty of religious freedom.

Finally, the court observed that a church could easily avoid the recognition of proxy votes by simply amending its charter or bylaws to so state. Herning v. Eason, 739 P.2d 167 (Alaska 1987).

Legal Developments

Court Concluded Children of Hassidic Jews to Choose Between Free Transportation and Their Religious Beliefs

New York law requires that all children be provided free bus transportation to both public

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Freedom of Religion, Schools

New York law requires that all children be provided free bus transportation to both public and private schools. When male children of Hasidic Jews in one community refused to be transported to their private religious school on buses driven by female drivers, the city responded by providing only male drivers on that route.

Female drivers sued the city, alleging that the city's practice violated the first amendment's nonestablishment of religion clause. A federal district court in New York agreed. The court acknowledged that the children would have to choose between free transportation and their religious beliefs (which prohibited any social interaction between the sexes), but concluded that such a dilemma was necessary in order to avoid a violation of the nonestablishment of religion clause. Bollenbach v. Monroe-Woodbury Central School District, 659 F. Supp. 1450 (S.D.N.Y. 1987).

Legal Developments

State May Restrict Acts and Conduct to Protect the Health and Safety of Its Citizens

Should a member of the Sikh faith—required by his religion to wear a knife at

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Freedom of Religion

Should a member of the Sikh faith—required by his religion to wear a knife at his side—be exempt from a municipal ordinance banning the public possession of an exposed knife?

No, ruled a New York state court. The court concluded that "while freedom to believe and worship as one chooses must remain absolute and unfettered, the state may restrict acts and conduct if the intrusion is justified by a compelling state interest to protect the health and safety of its citizens."

The court suggested that Sikhs use plastic knives, the public possession of which did not violate the ordinance. People v. Singh, 516 N.Y.S.2d 412 (1987).

Legal Developments

The Constitutional Guaranty of Freedom of Religion

Court refused to allow a “disfellowshiped” Jehovah’s Witness to sue her former church

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Church Membership - Discipline and Removal, Freedom of Religion

A federal appeals court has refused to allow a "disfellowshiped" Jehovah's Witness to sue her former church for defamation, invasion of privacy, fraud, and outrageous conduct.

The disfellowshiped member claimed that she had been aggrieved by the Jehovah's Witness practice of "shunning" which requires members to avoid all social contacts with disfellowshiped members. The court, acknowledging that the harm suffered by disfellowshiped members is "real and not insubstantial," nevertheless concluded that permitting disfellowshiped members to sue their church for emotional injuries "would unconstitutionally restrict the Jehovah's Witness free exercise of religion."

The constitutional guaranty of freedom of religion, observed the court, "requires that society tolerate the type of harm suffered by [disfellowshiped members] as a price well worth paying to safeguard the right of religious difference that all citizens enjoy." Paul v. Watchtower Bible and Tract Society of New York, 819 F. 2d 875 (9th Cir. 1987).

Legal Developments

State’s Approval of Home School Program Does Not Violate Freedom of Religion

Parents wanting to educate their children at home suffered setbacks in two recent state court

Richard R. Hammar, Attorney, CPA

Bio

State: Massachusetts
Categories: Freedom of Religion, Schools

Parents wanting to educate their children at home suffered setbacks in two recent state court decisions.

The Ohio Supreme Court ruled that a state law requiring parents to obtain the local public school superintendent's approval of a home education program did not violate parents' constitutional right of religious freedom. State v. Schmidt, 505 N.E.2d 627 (Ohio 1987).

In a similar case, the Supreme Judicial Court of Massachusetts ruled that guidelines adopted by the state for approval of home education programs did not violate the right of parents to freely exercise their religion. The court agreed that parents have a fundamental right to direct the education of their children, but concluded that "such a right is not absolute but must be reconciled with the substantial state interest in the education of its citizenry." Care and Protection of Charles, 504 N.E.2d 592 (Mass. 1987).

Legal Developments

Seminarian’s Religious Freedom Was Not Violated

A federal appeals court ruled that a Mennonite seminarian's constitutional right to religious freedom was

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

A federal appeals court ruled that a Mennonite seminarian's constitutional right to religious freedom was not violated by a federal prosecution for his failure to register with the Selective Service System.

The court observed that any burden on religious freedom was minimal since the religious objections could be raised after registration but before induction. United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987).

Legal Developments

Textbooks that Omitted Religion Violated the First Amendment

A federal district court in Alabama ruled that public school textbooks that omitted reference to

Richard R. Hammar, Attorney, CPA

Bio

State: Alabama
Categories: Freedom of Religion, Schools

A federal district court in Alabama ruled that public school textbooks that omitted reference to the significance of religion in American history and in current American life impermissibly promoted a religion of secular humanism in violation of the first amendment to the United States Constitution.

The court observed that though religion has been one of the most vital forces to shape our culture, "one would never know it by reading these books." Omitted were much of the history of the Puritans, the great awakenings, colonial missionaries (except when depicted as oppressors of native Americans), the religious influence behind the abolition of slavery, women's suffrage, temperance, and modern civil rights and peace movements, and the role of religion in the lives of immigrants and minorities.

"These books," concluded the court, "discriminate against the very concept of religion, and theistic religion in particular, by omissions so serious that a student learning history from them would not be apprised of relevant facts about America's history." Such deliberate underemphasis amounted to the establishment of the religion of humanism. Smith v. Board of School Commissioners, 655 F. Supp. 939 (S.D. Ala. 1987).

Legal Developments

“A.D.” Violating Religious Freedoms?

This 1986 North Carolina case addressed whether the abbreviation “A.D.” (anno domini) on government forms violates the constitution.

Richard R. Hammar, Attorney, CPA

Bio

State: North Carolina
Categories: Freedom of Religion

Does the use of the abbreviation “A.D.” on government forms violate the constitutional right of a member of the Jewish faith to freely exercise his religion?

‘No,’ concluded a federal district court in North Carolina. The court noted that the abbreviation stands for a Latin phrase meaning “anno domini — ‘in the year of our Lord,” an expression occurring in the United States Constitution. The court concluded that the “plaintiff asks the court to order the government to strike from its (forms) an abbreviation of a phrase which appears in the highest law of the land, the Constitution, wherein the right to free exercise of religion is established. This the court cannot do.” Ben Miriam v. Office of Personnel Management, 647 F.Supp. 84 (M.C.N.C. 1986).