Legal Developments

Court Had Authority to Compel Jewish Male to Submit to Jewish Ecclesiastical Court

A New Jersey state appeals court ruled that it had authority to compel a Jewish

Richard R. Hammar, Attorney, CPA

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State: New Jersey
Categories: Freedom of Religion, Marriage

A New Jersey state appeals court ruled that it had authority to compel a Jewish male to submit to the jurisdiction of a Jewish ecclesiastical court.

The man and his wife were married in 1969, and executed a written contract committing themselves to be bound by the laws of Moses and Israel. The spouses were later divorced, and the wife sought to remarry. However, under Jewish law, she could not remarry without first obtaining a "get" (an ecclesiastical release) from her former husband, since under Jewish law the two would continue to be married until he "released" her.

The court consulted with the Bible and the Encyclopedia Judaica to evaluate the significance of Jewish marriage and divorce, finding such study "necessary because the parties have signed a contract … committing themselves to be bound by such law."

The court concluded that "to compel the [husband] to submit to the jurisdiction of the Jewish ecclesiastical court, the 'Bet Din,' and initiate the procedure to secure a 'get' is within the equity powers of this court." The court's ruling directly contradicts a 1969 ruling of the United States Supreme Court prohibiting the civil courts from ever again resolving disputes on the basis of interpretation of religious doctrine or polity. Burns v. Burns, 538 A.2d 438 (N.J. Super. 1987)

Legal Developments

Court Concluded Father’s Beating Constituted Child Abuse Not Excused on the Grounds of Reasonableness or Religion

At what point does the physical discipline of a child by a parent become "child

Richard R. Hammar, Attorney, CPA

Bio

State: South Carolina
Categories: Child Abuse, Freedom of Religion

At what point does the physical discipline of a child by a parent become "child abuse"? This difficult question was addressed in a recent South Carolina case. A father beat his 13-year old daughter with a belt, and hit her on the face with his hand (while wearing a large college ring).

Five days later, the girl had large purple bruises covering most of the back of her legs and thighs, as well as a bruise on her face. The father felt that the beating was a proper exercise of parental discipline (his daughter allegedly told a lie), that it was a reasonable use of force, and that it was protected by the constitutional guaranty of religious freedom. He cited Proverbs 23:13-14: "Withhold not correction from the child; for if thou beatest him with the rod, he shall not die."

The court concluded that the beating constituted child abuse, and that it was not excused on the grounds of either reasonableness or religion. The court acknowledged that "reasonable" physical discipline is permitted, but concluded that the beating in question was excessive. With regard to the claim that the Bible justified the beating, the court observed that the Bible also pronounces the death penalty on disobedient children (Deuteronomy 21:18-21)—a claim that the parents clearly did not espouse.

The court further noted that "the law can regulate how people act, even if how they act is based on what they believe. If the law were otherwise, a Fundamental Mormon could have multiple wives, a Jehovah's Witness could withhold medical care form his child and a modern-day adherent of an early easter religion could drown a virgin bride to appease a river god. Indeed, if the law were otherwise, the father in this case could beat his daughter into submission.

Decisions of the United States Supreme Court have denied constitutional protection to the former practices. By our own decision in this case, we deny constitutional protection to the latter." The court left the girl in her parents' home, subject to "protective services." "We believe," concluded the court, "the mother and father can, if they will, learn to express their love in better ways, and the child can, if she will, learn to obey her parents—a requirement, coincidentally, of both the Bible and the law." Department of Social Services v. Father and Mother, 366 S.E.2d 40 (S.C. App. 1988)

Legal Developments

Nativity Scene in a County Courthouse Violated the Constitutional Prohibition of Any “Establishment of a Religion”

A federal appeals court ruled that the placement of a nativity scene in the main

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

A federal appeals court ruled that the placement of a nativity scene in the main lobby of a county courthouse building violated the constitutional prohibition of any "establishment of a religion."

Annually, since 1981, the county had permitted the display of the nativity scene, which consisted of traditional figures ranging in height from 3 to 15 inches, including a wooden stable with the infant Jesus, the Virgin Mary, Joseph, the three wise men, shepherds, various animals, and an angel holding a banner reading "Gloria in Excelsis Deo" (Glory to God in the Highest). The display was provided by the Holy Name Society of the Diocese of Pittsburgh, and included a sign reading "this display donated by the Holy Name Society."

Such a practice, concluded the court, violated the constitution's ban on an establishment of a religion, since the display was located "in a public building devoted to core functions of government" and was "placed at a prominent site … where visitors would see it." The court rejected the applicability of a 1984 decision of the United States Supreme Court upholding the constitutionality of a nativity scene, since (unlike the present case) the Supreme Court's ruling had involved a display "subsumed in a larger display of nonreligious items."

The appeals court emphasized that there would be no objection to displaying religious objects (including nativity scenes) in a museum or in a history course. A dissenting judge argued that the display posed "no threat to religious freedom," and warned that the court's suppression "forebodes ominous consequences." ACLU v. Allegheny County, 842 F.2d 655 (3rd Cir. 1988)

Legal Developments

US Supreme Court Upheld the Validity of the Adolescent Family Life Act

The Adolescent Family Life Act was designed to address the problem of adolescent pregnancy, and

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

The Adolescent Family Life Act was designed to address the problem of adolescent pregnancy, and among other things provided grants to public and nonprofit organizations engaged in "educational services relating to family life and problems associated with adolescent premarital sexual relations."

Congress recognized that "legislative or governmental action alone" was insufficient to deal with the problem, and accordingly the Act required that all federally funded services should "emphasize the provision of support by family members, religious and charitable organizataions." In addition, all applicants for federal grants had to demonstrate how they would involve religious and charitable organizations in the delivery of services and counseling.

A number of agencies associated with churches and religious denominations received federal funding under the Act, triggering a lawsuit challenging the validity of the Act. A federal district court struck down the Act, and the case was appealed directly to the Supreme Court.

In a 5-4 decision, the Court concluded that the Act did not violate the nonestablishment of religion clause. "Nothing in our previous cases," noted the Court, "prevents Congress from … recognizing the important part that religion or religious organizations may play in resolving certain secular problems." Further, "religious institutions need not be quarantined from public benefits that are neutrally available to all." However, the Court acknowledged that government funding cannot go to "pervasively sectarian" institutions, or toward "indoctrination into the beliefs of a particular religious faith."

But, the Court concluded that "nothing in our prior cases warrants the presumption" that religious agencies receiving funding under the Act "are not capable of carrying out their functions under the Act in a lawful, secular manner." Bowen v. Kendrick, 108 S. Ct. 2562 (1988)

Legal Developments

Court Ruled That a Prayer Room in the Illinois Legislature Did Not Violate the Nonestablishment of Religion Clause

In 1985, the Illinois House of Representatives adopted a resolution authorizing the establishment of a

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

In 1985, the Illinois House of Representatives adopted a resolution authorizing the establishment of a "prayer room" in the state capital building, as a "quiet and special place where the members of the General Assembly may seek God, the comfort of His presence, the light of His guidance, and the strength of His love."

To alleviate any constitutional questions, the room was made "nonsectarian," and the costs of renovation and maintenance were to be borne by private contributions. Shortly after the resolution was adopted, it was challenged in court on the grounds that it was an unconstitutional "establishment of religion."

A federal appeals court rejected this challenge, largely on the basis of a 1983 decision of the United States Supreme Court finding that the Nebraska legislature's practice of opening each session with a prayer read by a state-employed chaplain did not violate the First Amendment's nonestablishment of religion clause.

The appeals court observed that "if legislators may collectively bow their heads while a clergyman, paid from public funds, invokes the Deity to bless and assist their efforts, it seems absurd to find fault with the designation of a room in which they may pray or meditate privately as they individually see fit."

The court also based its ruling in part on "a degree of deference to the internal spiritual practices of another branch of government or of a branch of the government of another sovereign," and upon a tradition of legislators acknowledging, in relatively modest and nonintrusive ways, some role for spiritual values in their work." However, the court cautioned that "the intrusion of sectarian influences and religious emphases [in the decoration and use of the prayer room] could give rise to an establishment clause violation." Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir. 1988)

Legal Developments

Law Making Good Friday a Legal Holiday Does Not Violate the First Amendment

Does a Hawaii law declaring Good Friday to be a legal holiday violate the first

Richard R. Hammar, Attorney, CPA

Bio

State: Hawaii
Categories: First Amendment, Freedom of Religion

Does a Hawaii law declaring Good Friday to be a legal holiday violate the first amendment's nonestablishment of religion clause? No, concluded a federal district court.

The court observed: "The primary purpose of the statute which establishes Good Friday as a legal holiday was to increase the number and frequency of legal holidays. This purpose is clearly secular.

The court also finds that the primary effect of the statute is secular. The Good Friday holiday allows the people of Hawaii to play or pray as they see fit. Even the plaintiffs concede that many more people can be found in Hawaii's parks and shopping malls on Good Friday than can be found in its churches.

Moreover, this court's finding that Good Friday is similar in nature to Thanksgiving and Christmas provides additional ground for insulating the Good Friday holiday from a successful constitutional challenge. Just as Christmas and Thanksgiving are permissible because of their partially secular observations and because they provide a uniform day of rest and relaxation for Americans, Good Friday has attained a secular position in this nation's traditional fabric and provides citizens of Hawaii with a uniform day of rest." Cammack v. Waihee, 673 F. Supp. 1525 (D. Hawaii 1987)

Legal Developments

State Campaign Financial Disclosure Act Applied to Churches Who Publicly Opposed a “Liquor-by-the-Drink” Referendum

The Supreme Court of Tennessee ruled that a state "Campaign Financial Disclosure Act," which regulated

Richard R. Hammar, Attorney, CPA

Bio

State: Tennessee
Categories: Freedom of Religion

The Supreme Court of Tennessee ruled that a state "Campaign Financial Disclosure Act," which regulated the activities of "political campaign committees" within the state, applied to a group of 13 churches that publicly opposed the adoption of a "liquor-by-the-drink" referendum.

The churches purchased radio, television, and newspaper advertisements opposing the liquor referendum, and offering to provide transportation to the polls on election day; some of the churches, as part of the broadcast of their religious services, broadcast sermons expressing opposition to the referendum; and most of the churches published newsletters for their members which included expressions of opposition to the referendum. The churches spent $5,150 in their efforts.

Following an anonymous complaint, the state attorney general investigated the churches' activities and concluded that they were subject to the state's Campaign Financial Disclosure Act. The churches thereafter sought a "declaratory judgment" from a local state court. The local court concluded that the Act did apply to the churches' activities, and the churches appealed the question to a state appeals court, which ruled in their favor.

The appeals court ruling was then appealed to the state supreme court, which concluded that the Act did apply to the churches. The court observed that the Act regulated all "political campaign committees," which were defined as any combination of two or more persons or organizations making expenditures to support or oppose any measure in an aggregate amount exceeding $250 during any calendar quarter.

Since the churches "made expenditures … to influence the outcome of the vote in the local liquor referendum … [they] constitute political campaign committees." The Act requires political campaign committees to file disclosure statements with the county election commission.

The court rejected the churches' claim that public questions such as a liquor referendum are primarily moral rather than political issues. It also rejected the churches' contention that the Act violated their constitutional right to free speech, since whatever burden the Act imposed on the churches' free speech rights was "justified by a compelling state interest."

In particular, the court noted that "the public has a right to know at a minimum how campaigns on public issues are financed and by whom. Large undisclosed contributions can distort public sensibilities and allow confidence in the electoral system to wane as the perception waxes that elections can be unduly influenced by wealthy special interests and well-financed factions.

The legislature has determined that disclosure is a sufficient remedy for the effects of the concentration of wealth on elections …. Any group that wishes to participate in the process through the financing of election … advocacy should reveal the extent of this financial involvement to the public. This is all that the people of Tennessee have asked of groups directly participating in an election campaign …."

The court also concluded that (1) "the Act does not apply to financing of generalized discussion of public issues and is triggered only when a group is financing … specific advocacy in a particular campaign"; (2) the churches' "regular and continuing programs of broadcasting their religious services on radio and television or of publishing and distributing church newsletters are not and cannot be considered campaign contributions or expenditures, regardless of whether they advocate a particular election result or not in the course of such activities, as these activities are protected by the First Amendment and are expressly excluded from the operation of the Act"; (3) "if [the churches] published advertisements or other forms of general expression that warned of the potential and actual effects of alcohol consumption or other perceived social evils, outside the context of an election campaign or even during a campaign but without financing election-specific advocacy, then such activities would not fall within the Act, absent any indication these activities were timed and intended to circumvent the requirements of the Act."

The churches appealed the Tennessee Supreme Court's ruling directly to the United States Supreme Court. However, the Court denied the appeal (and a motion for rehearing), leaving the state court's ruling intact. Bemis Pentecostal Church v. State, 731 S.W.2d 897 (Tenn. 1987)

Legal Developments

Public School Cannot Prohibit Students from Distributing Religious Literature in Hallways Before School Starts

Can a public junior high school prohibit students from distributing religious literature in school hallways

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Freedom of Religion, Schools

Can a public junior high school prohibit students from distributing religious literature in school hallways before the start of each school day? This question was addressed by a federal district court in Pennsylvania.

The court concluded that the school, by permitting various student groups to meet on school property during noninstructional hours, had created a limited "public forum." Accordingly, the school could not restrict any group's speech on the basis of the content of the speech, unless the restriction was necessary to serve a "compelling state interest" and it was "narrowly drawn to achieve that end."

Banishing Christian students to "sidewalks and parking lots" violated the students' constitutional right of free speech, concluded the court, and was not supported by any compelling state interest. The court rejected the school's argument that the restrictions were necessary in order to avoid violating the nonestablishment of religion clause: "Accommodation … of a religious organization in accordance with a limited public forum does not constitute a state imprimatur on the particular religion involved."

The court emphasized that its conclusion "in no way affects [the school's] power to enforce reasonable time, place, and manner regulations" designed to insure that no student group materially interferes with the educational process or interferes with another person's rights.

Finally, the court rejected the students' claims that the "Equal Access Act" had been violated (it only addresses the right of students to engage in voluntary meetings on public school property during noninstructional hours), and that their constitutional right to freely exercise their religion had been abridged (the students were free to distribute literature and engage in evangelism in any public place, including the school parking lot). Thompson v. Waynesboro Area School District, 673 F. Supp. 1379 (M.D. Pa. 1987)

Legal Developments

Equal Access Act Did Not Require a Public High School to Allow Students from an Evangelical Christian Group to Distribute Religious Materials

A California appeals court ruled that the federal "Equal Access Act" did not require a

Richard R. Hammar, Attorney, CPA

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State: California
Categories: Freedom of Religion, Schools

A California appeals court ruled that the federal "Equal Access Act" did not require a public high school to allow students from an evangelical Christian group to distribute religious materials on school property or place religious advertisements in the school yearbook.

The Act forbids public high schools from restricting the use of school facilities during noninstructional hours by noncurriculum-related student-initiated groups solely on the basis of the content of a group's speech (religious, political, etc.) if the school has created a "limited open forum" by making those same facilities available to other groups.

In this case, concluded the court, the high school had not created a limited open forum since it had never made its facilities available to any noncurriculum-related student group. As a result, the school was not required to accommodate the activities of the religious group in question. Perumal v. Saddleback Valley Unified School District, 243 Cal. Rptr. 545 (4th App. Dist. 1988)

Legal Developments

Words “So Help Me God” in the Oaths Administered to Jurors and Witnesses in a Criminal Trial Do Not Violate the Separation of Church and State

Do the words "so help me God" in the oaths administered to jurors and witnesses

Richard R. Hammar, Attorney, CPA

Bio

State: Massachusetts
Categories: Freedom of Religion

Do the words "so help me God" in the oaths administered to jurors and witnesses in a criminal trial violate the constitutional principle of separation of church and state?

No, concluded the Supreme Judicial Court of Massachusetts. Such terminology is simply one example "of many permissible, secular references to the Almighty that run through our laws, our public rituals, and our ceremonies." Commonwealth v. Callahan, 519 N.E.2d 245 (Mass. 1988)

Legal Developments

Refusal to Permit Students to Meet on School Premises for Bible Study and Prayer Did Not Violate the Equal Access Act or the Guaranty of Religious Freedom

A federal district court in the State of Washington ruled that a public high school's

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Freedom of Religion, Schools

A federal district court in the State of Washington ruled that a public high school's refusal to permit students to meet on school premises for Bible study and prayer did not violate either the Equal Access Act or the constitutional guaranty of religious freedom.

Under the Equal Access Act, a public high school having a "limited open forum" may not deny access to school premises to any noncurriculum-related, student-initiated groups on the basis of the religious content of their speech. Schools create a limited open forum by allowing any noncurriculum-related student groups to meet on school premises during noninstructional hours.

This law, concluded the court, did not apply in the present case since the school had not created a limited open forum. While several student groups met on school premises, all of them were curriculum related and school sponsored. The court also observed that even if the school had created a limited open forum by allowing noncurriculum-related student groups to meet on school premises during noninstructional hours, the Equal Access Act still would have been of no benefit to students seeking permission to use school property for religious purposes since such use of public school facilities would have violated the Washington state constitution, and "the Equal Access Act itself provides that a state need not break its own laws in order to observe [the Act's] requirements."

The state constitution, concluded the court, "requires a far stricter separation of church and state than the federal constitution." Finally, the court ruled that the students' constitutional right to freely exercise their religion had not been abridged by the school's policy, since students were free to meet on private property for Bible study and prayer, and the school's policy was mandated by the nonestablishment of religion clauses in both the state and federal constitutions. Garnett v. Renton School District, 675 F. Supp. 1268 (W.D. Wash. 1987)

Legal Developments

Court Rejected Claim That Exemption of Church-Operated Childcare from State Licensing Was an Unconstitutional Religious Preference

The Illinois Supreme Court rejected the claim that the exemption of certain church-operated childcare facilities

Richard R. Hammar, Attorney, CPA

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State: Illinois
Categories: Freedom of Religion

The Illinois Supreme Court rejected the claim that the exemption of certain church-operated childcare facilities from state licensing amounted to an unconstitutional "religious preference."

The exemption was available only to church-operated childcare facilities that were "a component of a religious, nonprofit elementary school," and was set forth in a statute that exempted a variety of childcare facilities operated in conjunction with schools.

Such an exemption, concluded the court, was permissible since it was narrowly drawn and did not "single out" religious facilities for favored treatment. Pre-School Owners Association v. Department of Children and Family Services, 518 N.E.2d 1018 (Ill. 1988)

Legal Developments

State’s Interests Amounted to a Compelling Interest That Overrode the Church’s Religious Beliefs

Does the application of a state workers' compensation statute to churches violate the constitutional guaranty

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Freedom of Religion, Workers Compensation

Does the application of a state workers' compensation statute to churches violate the constitutional guaranty of religious freedom? No, concluded a federal district court in Ohio.

A Baptist church argued that the state of Ohio, through its workers' compensation system, had "assumed lordship over the church in direct contravention to the biblical principle that Jesus is 'head over all things to the church' (Ephesians 1:22) and that 'in all things [Christ] might have preeminence' (Colossians 1:18)." In addition, the church argued that "it would be a sin to contribute workers' compensation out of church funds designated for biblical purposes and that tithe and offering money … belongs to God."

The court concluded that these allegations were "sufficient to allege infringement of [the church's] religious beliefs." However, "the mere fact that a religious practice is burdened by a governmental program does not mean that an exemption accommodating the practice must be granted," since "the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest."

The court concluded that a state's interest in assuring the efficient administration and financial soundness of the workers' compensation fund, and in protecting the interests of injured workers, amounted to a compelling interest that overrode the church's religious beliefs. The court noted that the Ohio law did exempt clergy from coverage under the workers' compensation, and this limited exemption sought "to obviate excessive interference with the religious ministry of churches."

Also rejected was the church's claim that the workers' compensation program would impermissibly "entangle" government and church, since other courts had upheld even greater reporting requirements as constitutionally permissible. Finally, the court observed that exempting churches from coverage under the workers' compensation law would force injured workers to sue churches in the civil courts, "an even more undesirable result from a scriptural standpoint." South Ridge Baptist Church v. Industrial Commission, 676 F. Supp. 799 (S.D. Ohio 1987)

Legal Developments

Court Concluded District’s Civil Rights Act Did Require Equal Access to University Facilities and Services

University was sued by various homosexual student groups for its refusal to officially recognize them.

Richard R. Hammar, Attorney, CPA

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State: District of Columbia
Categories: Freedom of Religion, Schools

Georgetown University was sued by various homosexual student groups for its refusal to officially recognize them. The students cited the District of Columbia "Civil Rights Act" which bans discrimination based on sexual orientation by any educational institution within the District.

The University (a private Catholic educational institution) argued that recognition of the groups would violate its constitutional right to religious freedom since recognition would imply endorsement of conduct contrary to Catholic doctrine.

The court concluded that the District's Civil Rights Act did not require that a private religious university recognize a student group whose beliefs and practices were contrary to church teachings. However, it held that the Act did require equal access to University facilities and services, and, since the University denied the homosexual groups certain services (a mailbox, computer labeling, mailing services, and the right to apply for funding), it was in violation of the Act.

The court found that any burden on the University's religious freedom that might result from providing these incidental services was so minimal that it was overridden by the compelling governmental interest of eradicating discrimination. Gay Rights Coalition v. Georgetown University, 536 A.2d 1 (D.C. App. 1987)

Legal Developments

Court Rules on Right of Students to Meet on School Property for Prayer, Bible Study, and Evangelism

A question of continuing controversy is the constitutional right of public high school students to

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Schools

A question of continuing controversy is the constitutional right of public high school students to meet on school property during non-instructional hours for prayer, Bible study, and evangelism.

This important question was addressed in a recent federal district court ruling in Texas. A group of students, that originally had met on school property for collective prayer and Bible study, became much more evangelistic in its mission. The group's leader preached loudly (sometimes using a bullhorn) to attract the attention of other students, and group members distributed tracts to other students urging them to dedicate their lives to Jesus Christ.

The school administration prohibited the group from conducting further meetings on school property, and the group sued the school district for an alleged violation of the constitutional guaranty of religious freedom.

The court concluded that: (1) The use of bullhorns and loud preaching was not protected by the constitutional guaranty of religious freedom since "the students' right of expression must be balanced against the school's countervailing interest in protecting the privacy of unwilling student listeners." (2) Students have a "limited free exercise right" to engage in "small, informal meetings, centered on communication between group members and not disrupting the comings and goings of other students by proselytizing," since such meetings are "appropriate to the nature of the forum." However, this limited right is superseded by the first amendment's nonestablishment of religion clause and accordingly a school can constitutionally prohibit any religious meetings on school property. The court rejected the contention that it was impermissibly "inhibiting" the exercise of religion, since students were free to meet on nearby private property. (3) Individual students cannot be denied the right to "discuss religion and pray discreetly with others." (4) Large, organized religious meetings enjoy no constitutional protection and can be prohibited since they are "inconsistent with the intended use of school property."

Finally, the court acknowledged that its ruling was inconsistent with Equal Access Act enacted by Congress in 1985. The Equal Access Act generally permits public high school students to meet on school property during non-instructional hours for religious purposes if the school permits other groups to use school facilities for meetings.

The court concluded that the Equal Access Act is unconstitutional and therefore invalid. This ruling will doubtless be appealed to the fifth circuit court of appeals—a court that ruled in 1982 that the first amendment's nonestablishment of religion clause prohibits organized meetings on public high school property. For now, the constitutionality of the Equal Access Act is in doubt in the fifth federal circuit (consisting of the states of Alabama, Florida, Georgia, Louisiana, Mississippi, Texas).

Source: CLTR, March/April 1988

Legal Developments

Court Ruled that a Proposed State Law Providing a Tax Deduction for Education Expenses Violated the State Constitution

The Massachusetts Supreme Court ruled that a proposed state law providing a tax deduction for

Richard R. Hammar, Attorney, CPA

Bio

State: Massachusetts
Categories: Freedom of Religion, Schools

The Massachusetts Supreme Court ruled that a proposed state law providing a tax deduction for education expenses incurred in attending public or private primary and secondary schools violated the state constitution.

The court acknowledged that the United States Supreme Court in 1983 upheld a similar statute in Minnesota against the claim that it violated the nonestablishment of religion clause of the United States Constitution. However, the court concluded that the Massachusetts state constitution contained a more stringent clause that banned any "grant, appropriation or use of public money" for any private or religious school or institution. This ruling is one of a number of state court rulings in recent years that have used state constitutional provisions to condemn practices that the federal courts have said do not violate the nonestablishment of religion clause of the United States Constitution. Opinion of the Justices to the Senate, 514 N.E.2d 353 (Mass. 1987)

Legal Developments

Court Ruled City Violated the Guaranty of Religion Clause by Changing Zoning Laws Prohibiting Jehovah’s Witness Building a Church

A Jehovah's Witness congregation applied to city officials for approval to build a church in

Richard R. Hammar, Attorney, CPA

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State: New Jersey
Categories: Church Property, Freedom of Religion, Zoning

A Jehovah's Witness congregation applied to city officials for approval to build a church in an area zoned for manufacturing use. The city then rezoned much of the community, changed the area where the church was to be built from a manufacturing to a residential district, and then prohibited the building of churches in all residential districts.

The congregation challenged the city's action as a violation of the constitutional guaranty of religious freedom. The court agreed: "Municipalities have the power to zone their districts, but to exclude churches and other places of worship from the very areas (residential communities) that they draw their members from and relocate them to a less desirable zone of the township … offends the very essence of … the New Jersey Constitution." Jehovah's Witnesses v. Woolrich Township, 532 A.2d 276 (N.J. Super. 1987)

Legal Developments

Court Rejected Church’s Claim that the Guaranty of Religious Freedom Prevents Ministers from Being Sued for Defamatory Statements

A minister of the Worldwide Church of God wrote an article in a church publication

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Defamation, Freedom of Religion

A minister of the Worldwide Church of God wrote an article in a church publication that addressed the Church's newly developed and misunderstood doctrine on divorce and remarriage. The article contained statements that allegedly defamed the former spouse of a prominent Church official.

The court concluded that "our accommodation of the competing interests of our society—one protecting reputation, the other, the free exercise of religion—requires that we hold that in order for a plaintiff to recover damages for defamatory remarks made during the course of a doctrinal explanation by a duly authorized minister, he or she must show, by clear and convincing evidence, that the defamation was made with `constitutional malice,' that is with knowledge that it was false or with reckless disregard of whether it was false or not." Such a rule, observed the court, "strikes an appropriate balance between our citizens' reputational interests and our society's interest in protecting the right to free exercise of religion."

The court rejected the Church's claim that the constitutional guaranty of religious freedom prevents ministers from ever being sued for defamatory statements made in the course of doctrinal explanations. Such suits are constitutionally permissible, concluded the court, but a plaintiff has the difficult burden of proving "malice" by "clear and convincing evidence."

The court's ruling does not address the related issue of liability for allegedly defamatory nondoctrinal articles contained in church or denominational publications. For example, is it defamatory for religious denominations to state in a denominational publication that a particular minister has been disciplined or dismissed? This significant issue has been addressed by other courts . McNair v. Worldwide Church of God, 242 Cal. Rptr. 823 (2d App. Dist. 1987)

Legal Developments

Court Rejected School District’s Claim that Allowing School Facilities to Be Used for Religious Purposes Would Violate the First Amendment

Can a high school legally prohibit religious groups from using an auditorium that is available

Richard R. Hammar, Attorney, CPA

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State: Pennsylvania
Categories: First Amendment, Freedom of Religion, Schools

Can a high school legally prohibit religious groups from using an auditorium that is available without restriction to non-religious community groups?

A federal district court in Pennsylvania said no. Here are the facts. A Christian student group requested permission to use a high school auditorium for a one-night performance and evangelistic message by a noted magician. The students' application included the application fee of $1,379. When school authorities discovered that the proposed use of the auditorium included a religious message, they denied the application, citing a school policy prohibiting "use of school facilities for religious services, instruction, or activities."

The student group thereafter sued the school district, alleging a violation of the constitutional right of free speech. The court agreed, noting that "the state is not required to open its property to the public in order to allow it to engage in free speech, association and discussion—but once it does, rights of free speech and association guaranteed by the first amendment are entitled to be protected even if that activity includes religion or religious subjects."

The court emphasized that the school district had "opened the school facilities for general use by community groups," including boy scouts, girl scouts, Easter Seals, Kiwanis, Rotary, dance lessons, and a symphony orchestra. In addition, the school was used for adult evening classes which included instruction on occultic religious practices. Having created an "open forum" for free speech and assembly in its school facilities, the district could not deny access to any group on the basis of the content of its speech, even if the speech were religious in nature.

The court rejected the district's claim that allowing school facilities to be used for religious purposes would violate the first amendment's nonestablishment of religion clause: "Nothing in the establishment clause requires the state to suppress a person's speech merely because the content of that speech is religious in character."

The court warned that it would have reached a different conclusion had the evidence indicated that religious speakers "dominated" the open speech forum, or if use of the school facilities included "religious services." While noting that a school can lawfully prohibit all groups from meeting without violating the free speech rights of any group, it prohibited the school district from closing its "open speech forum" before the challenged performance was conducted.

Several churches and religious groups have been denied access to public school facilities that are made available to other community groups. The Pennsylvania ruling, while not binding in other states, will serve as useful precedent for religious groups seeking limited access to public school facilities. Gregoire v. Centennial School District, 674 F. Supp. 172 (E.D. Pa. 1987)

Legal Developments

A State Unconstitutionally Burdens the Free Exercise of Religion Whenever it “Forces a Worker to Choose Between Fidelity to Religious Belief or Cessation of Work”

A federal district court ruled that the denial of unemployment benefits by the state of

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

A federal district court ruled that the denial of unemployment benefits by the state of Virginia to a woman who quit her job to accompany her husband to another community in order to care for his aging mother violated her constitutional right to freely exercise her religion.

Specifically, the woman argued that the tenets of the Holiness religion required her to respect her husband's decision to move, to live with her husband, to care for her mother-in-law, and to raise her children in conjunction with her husband.

The state denied unemployment benefits on the basis of a law denying benefits to anyone who voluntarily quits work "to accompany or join his or her spouse in a new locality." The court concluded that a state unconstitutionally burdens the free exercise of religion whenever it "forces a worker to choose between fidelity to religious belief or cessation of work." Austin v. Berryman, 670 F. Supp. 672 (W.D. Va. 1987)