[UPDATE: I originally erroneously reported that the Legislature had repealed the statute; it turns out that the repeal seems about to happen: Prof. Howard Friedman (Religion Clause) reports that, "According to the Oregonian, yesterday by a vote of 21-9 Oregon's state Senate approved House Bill 3686 repealing an 87-year old ban on teachers wearing religious dress in the classroom.... The state House of Representatives has already passed the bill, but it now goes back to the House because of two changes in wording made by the Senate."]
The statute, the former Ore. Rev. Stat. § 342.650, provided
No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher.
Though it facially discriminates against religious practices, it was nonetheless upheld against a Free Exercise Clause challenge, in Cooper v. Eugene School Dist. No. 4J (1986). I think it should have been struck down, and I’m glad it has been repealed. [UPDATE: Because some comments seem to miss this, I thought I'd stress it again: The law is presumptively unconstitutional because it discriminates against religious practices on the basis of their religiosity. If the law were religion-neutral, such as a uniform dress code for all teachers without regard to religion, then it would be judged under Title VII's "reasonable accommodation" standard, which gives employers -- private or governmental -- considerable though not unlimited flexibility to impose such restrictions, including on religious objectors.]
The common argument in favor of such a law is that it is necessary to prevent students from assuming that the school endorses religion (which might even give rise to an Establishment Clause, under modern Establishment Clause caselaw). But the law is not necessary to prevent such perceived endorsement, and should thus fail the strict scrutiny that should be applied to deliberate discrimination against religious practice.
The law is only necessary to prevent endorsement to the extent that the wearing of religious garb by a teacher will be seen by reasonable students as an endorsement of religion by the government. But a child who is old enough to realize that, say, a nun’s habit means that she’s a Catholic — or a teacher’s turban means that he’s a Sikh — will generally be old enough to recognize that people of many different religions may work at the same institution, and that the school’s willingness to hire a Catholic or a Sikh doesn’t mean that the school endorses Catholicism or Sikhism.
This would be especially true if the child sees other teachers who don’t wear such garments, which would just reinforce the fact that the garment is the teacher’s own choice, not the school’s. As a general matter, garments are not interpreted by viewers, even young viewers, as attempts to persuade people of the truth of one’s faith.
Moreover, even if the court concludes that some very young students may interpret a teacher’s religious garb as the school’s endorsement of religion, or may be subtly coerced by seeing this garb on an authority figure, the case for this becomes much weaker for older students, and especially for high school students. Surely by the time one becomes a teenager, one realizes that the school may employ overtly Catholic teachers, overtly Jewish teachers, and overtly Muslim teachers without endorsing one or another religion. So the law is certainly overinclusive at least to teachers of older students.
And even if younger students may falsely assume that the teacher’s religion is endorsed by the school, the school may fulfill its interest in avoiding endorsement by dispelling this misconception, either directly or through the parents. In America, the school can say, teachers and students belong to all sorts of religions, but their religions are their personal choices, not the school’s choice. The school neither endorses nor condemns any teacher’s religious belief, which is why some teachers wear some kinds of clothes and others wear other kinds. Even for young students, this is not a complicated lesson, and it’s likely a lesson that’s worth teaching. And teaching this lesson can be done without discriminating against religious practices, and without effectively excluding teachers who feel an obligation to wear religious garb.
I regret to say that the ACLU of Oregon opposed the repeal, arguing that “[A]ny change or repeal of the Oregon religious dress law may have unintended consequences that could result in an inappropriate expansion of religious activity in our public schools. Some repeal proponents recognize how complicated this issue is and that repealing the current prohibition, alone, would risk injecting additional controversy related to religion in our public schools. ACLU believes that without this law, existing constitutional protections and other statutes may not be adequate to protect the religious neutrality of public schools.”
But I don’t think that argument is correct, partly for the reasons given above, and partly because repealing the law would simply put Oregon on the same footing with nearly all the other states, which don’t ban schoolteachers’ wearing of religious garb. Yet to my knowledge, the controversies in those states about supposedly “inappropriate expansion of religious activity in our public schools” have not stemmed from those schools’ toleration of teachers’ religious garb — precisely because we generally assume that schoolteachers wear clothing of their own choosing, which expresses their own cultural and religious views (without being aimed at converting others to those views), and which does not represent the views of the government. Even young children, I suspect, grasp that (again, especially because in most schools they see different teachers wearing different kinds of clothing). And if they don’t, they can be easily taught this, and can learn a valuable lesson in the process.
Thanks to Prof. Steve Green for the pointer.
ll says:
I seem to recall some schools requiring their students to practice the practices of particular religions, specifically, at least, Islam, even though there was no “religious dress” involved on the part of the teachers. Perhaps the ACLU should be concerned with that.
February 23, 2010, 11:28 pmDavid Schwartz says:
I find your argument persuasive as a matter of what the current law is. I write to make a different point to those who have Objectivist leanings, who are atheistic Libertarians, or who otherwise support a strict wall between church and state, who may wish that the law permitted this type of restriction.
Of course, we don’t think the government should be running schools. But this is not like we don’t think the government should be regulating building construction. We think that whoever wants to run schools should do so, and does so, but just not the government.
So the usual objectivist/libertarian rule for the government doing something that private individuals are allowed to do is that we hope the government would do these things the same way an “ideal” private entity would. (For example, while we hold that private citizens may discriminate on the basis of race if they want, we wouldn’t let the government do so in our name.)
I think it’s pretty clear that an ideal private employer would not make his employees choose between following their religion and taking employment with him, unless he had strong business reasons for doing so. If no other reason, this would reduce the potential talent pool he could access, or he’d have to pay his employees more to compensate for the loss of this freedom.
Note that the one exception is that we don’t allow the government to indulge the prejudices of ‘customers’. So while we would allow (though also condemn) a private company to, say, refuse to hire blacks on the grounds that his customers don’t like them, we would not allow the government to do so even if it’s rational. So the argument that it might offend or annoy people and thus should be prohibited doesn’t apply to the government as employer.
Again, EV’s argument is persuasive as a matter of law. I’m only arguing that this is also the right result according to Libertarian and Objectivist principles as well.
February 23, 2010, 11:32 pmCornellian says:
It would be interesting to see what would happen to a statute that required all teachers to wear a uniform, regardless of whether their religious beliefs might otherwise dictate wearing something different. That seems to me more defensible than a “no religious garb” rule, even if it ultimately wouldn’t pass muster either.
February 23, 2010, 11:48 pmTRE says:
Are religious necklaces allowed?
February 24, 2010, 12:03 amyankee says:
Does the national ACLU have an opinion of this sort of restriction? The state-level ACLU’s have a fair degree of autonomy: they can and sometimes do take positions at odds with those of the national organization. And support for a law this restrictive does seem a bit much even for the ACLU.
February 24, 2010, 12:05 amShelbyC says:
Good, maybe now their neighbor to the north will repeal their law that makes it OK to discriminate against Theology students. That Lock v Davy was a flat-out travesty.
February 24, 2010, 12:33 amEvilDave says:
Who wanted this repealed?
Who paid for it to be repeal?
Why did they want it repealed?
Those are the most important questions to ask when looking at something like this.
February 24, 2010, 1:25 amNone of the articles I have seen have answered them.
Oregon Legislature Repeals Statute Barring Wearing of Religious Dress by Public School Teachers | Liberal Whoppers says:
[...] more: Oregon Legislature Repeals Statute Barring Wearing of Religious Dress by Public School Teachers [...]
February 24, 2010, 3:28 amJonathan Gardner says:
It doesn’t appear that the law made any distinguishment between clothes that are visible or underclothes. I hate to think what the LDS members would have to do.
Any law that prohibits the exercise of religion has to understand that part of Christianity is charity, kindness, honesty, justice, mercy, and a pursuit of truth. If we prohibited the exercise of religion in our schools, we would have to ask the Christian teachers to stop being nice to people.
Believers in the Ten Commandments would have to lie, murder, steal, and commit adultery, because not doing so would be a tenet of their religion as well.
February 24, 2010, 3:51 amJ. Aldridge says:
So if I join a religion that requires me to teach naked, a state would be prevented from enforcing any kind of dress code against my religious practice? What if I was refused employment because of my “religion”?
Will someone will find “exceptions” to the Free Exercise Clause that will render it not so “free”?
Something tells me we should go back to original meaning instead of fictional tales of incorporation and the first amendment.
February 24, 2010, 4:19 amHistory Punk says:
“Any law that prohibits the exercise of religion has to understand that part of Christianity is charity, kindness, honesty, justice, mercy, and a pursuit of truth.”
I was shunted into special education programs as kid and even I can recognize this as dubious at best. American law has long ago recognized the insanity of organizing lives according to the Bible and thus we ignore most of the Bible prohibtions and even actively campaign against its standards of morality. If Moses or Joshua were alive today, both of them would have to hide out with Ratko Mladic in order to avoid American intelligence and the Navy Seals actively hunting them down, much like Serbian war criminals did back in the late 1990s.
For further evidence, check out http://www.thebricktestament.com/joshua/amorite_coalition_massacred/jos10_01.html
February 24, 2010, 4:52 amDavid Schwartz says:
Then that would be too bad. The reason this law was a problem was because it prohibited even religious dress that would not have any such effect, not because it prohibited religious dress that would cause real problems.
This is really equivalent to saying that we can’t allow free speech because then someone could yell “fire” in a crowded building (when there wasn’t a fire). It’s clear there’s a line and your example is on one side of it and the law covers a lot of conduct on the other side.
February 24, 2010, 5:12 amdearieme says:
What if someone claims that his religion is Naziism and so he’s going to wear a swastika?
February 24, 2010, 6:14 amDr. Weevil says:
History Punk thinks that Christianity can be blamed for what Moses and Joshua did, specifically what the latter did to the Amorites? I could snark about possible reasons why he/she “was shunted into special education programs as kid”, but that would be cruel. I’ll just note the complete ignorance of Christianity’s relation to the Old Testament. Hint: Christians believe that Christianity has superseded Judaism, and that they need not follow every teaching of the Old Testament, though they still consider it a holy book.
February 24, 2010, 7:27 amLaura(southernxyl) says:
My guess is that any teacher who would claim that his religion is Naziism would be problematic for reasons waaayyy more signficant than wearing a swastika.
February 24, 2010, 7:46 amMitchell J. Freedman says:
Allowing teachers to wear religious clothing in their classes strikes me as the beginning of a problem, not a solution. I am not sure why it is so constitutionally compelling to allow teachers wear religious head coverings, talit, burkas, etc.
Is a teacher’s personal right to free speech (we’re talking public schools K-12, not college) so important that it protects that teacher’s right to preach about his or her religion? If we can’t prohibit their wearing of religious clothing, then, the very next step–not a slippery slope–is the protection of their right to advocate on behalf of their religious beliefs during class.
To support this law, the school should not have to choose between a rigid dress code or allowing this sort of religious clothing which will immediately become a form of advocacy no different than preaching with words.
February 24, 2010, 9:52 amLaura(southernxyl) says:
Mitchell, the teacher probably views wearing the religious clothing as an expression of religion, a right guaranteed by the First Amendment. I don’t want to see people required to waive their constitutional rights to get a job and earn a living.
February 24, 2010, 10:12 amKen Arromdee says:
I don’t understand this. The law doesn’t discriminate on the basis of religiosity, it discriminates against religions that wear a subset of clothing that doesn’t fit in the category “looks like normal nonreligious clothes”. Likewise a dress code discriminates against religions that wear clothing that doesn’t fit in the category “is a suit and tie” or whatever. It’s the same thing, just applied to a narrower set of clothing.
In order to say that the law discriminates on the basis of religiosity, you’d have to reason “the law has more impact on religions with greater religiosity, therefore it’s discriminating on the basis of religiosity”. But that reasoning would also lead you to conclude that since the dress code impacts religions with some traits more than others it discriminates on the basis of those traits too.
February 24, 2010, 10:13 amAndrew says:
I agree that the law in question is probably overbroad, but what if you were dealing with a school located in a very Catholic area? If that school hired Catholics almost exclusively and all of those teachers wore Catholic garb, couldn’t that create a reasonable impression (at least a subconscious one) that the school endorses/establishes Catholicism?
February 24, 2010, 10:19 amPeteP says:
“assuming that the school endorses religion …..But the law is not necessary to prevent such perceived endorsement,”
I don’t know what other impression one could get from having the sole authority figure at the front of the room wearing overtly religious attire.
What if a RC Christian lady wants to wear the full nun’s habit ? Flying Nun headgear and all ? What if a muslim wants to wear the burqa / nijab / et al ? Do you think some lady wearing a head to foot tent / mask with an eye slit is an acceptable public school teacher ? I do not.
Putting that person at the head of the class, as the only authority figure in the room, is an automatic endorsement of that person as a role model. What if some lady wanted to wear a street hooker’s outfit ? Is that ‘just a personal choice of dress’ ?
Also, anyone who is THAT obsessed with their religion that they choose to dress up like that is obviously going to impute their religion to everything they do and say. Anyone who goes around wearing a Flying Nun outfit or Burqa, etc, is inevitably going to frequently couch everything they say or do in terms of their religion, both overtly and covertly. They can’t help it.
The standard of dress in this country in the workplace does not include such outfits, and they should not be allowed in the classroom in public schools, neither by staff nor students.
February 24, 2010, 10:23 amReligious Dress in the US | Crossroads Arabia says:
[...] identified clothing by public school teachers. That law is in the process of being repealed: Oregon Legislature About to Repeal Statute Barring Wearing of Religious Dress by Public School Teachers Eugene [...]
February 24, 2010, 10:25 amDr. Weevil says:
Two more problems with the law are that it is (a) hopelessly vague and (b) ineffective in concealing teachers’ religious beliefs from their students:
a. What is “religious clothing”? Where do we draw the line? I’ve never heard of a Catholic priest or nun teaching at a public school – there aren’t enough to go around for the Catholic schools – so we’re not talking about clerical collars or nun suits here. A visible cross around the neck? I’ve known college girls who were not the least bit religious, but wore them as a signal that they weren’t interested in casual sex. Conservative clothes? I’ve taught a Muslim 8th-grade girl, who always wore ankle-length dresses when the other girls mostly wore pants, but surely a long skirt is not ipso facto religious. Anyone can wear them, though here in the Shenandoah Valley, a long black dress and a sort of bonnet (can’t think of the right word) is a strong hint that a women is a Mennonite. But it’s not exactly a sure sign, and there’s no uniform for most religions. (The Sikh male’s turban, beard, and dagger is an exception, but that may be bannable for including weaponry.)
b. It isn’t hard to tell who the serious Catholic teachers are at my school: they all had ashes on their foreheads a week ago today. I don’t see how even the boldest lawyer could argue that ashes are clothing, so if revealing one’s religious beliefs by modifying one’s appearance is a bad thing, it’s a bad thing that’s surely legal in Oregon — at least for Catholics on Ash Wednesday.
How about a tattooed cross in some visible place? That’s not clothing either, but gets across the same message as one worn on a chain around the neck. It is arguably a solider sign of religious belief, being more or less permanent. (Or maybe I should say a solider sign of present or past religious belief, since the wearer may have lost his/her faith and not have enough money to remove the tattoo.)
February 24, 2010, 10:43 amDangerMouse says:
If that school hired Catholics almost exclusively and all of those teachers wore Catholic garb, couldn’t that create a reasonable impression (at least a subconscious one) that the school endorses/establishes Catholicism?
No. Any impression would be unreasonable, based on a wildly overbroad fear of religion that is inconsistent with common sense.
And of course the ACLU is against the repeal. They hate Christians.
February 24, 2010, 10:51 amYankev says:
If there are any Christians who think that the command addressed to the Sons of Israel to battle the Amorites applies to Jews today when we are not entering Canaan under direct Divine communication and command, or that the command ever was addressed to gentiles, they are in no position to decry the Biblical ignorance of others.
February 24, 2010, 10:55 amYankev says:
Depending on the quality of the work, it is sometimes a statement that “I am trying to impress the parole board that I have turned my life around.”
February 24, 2010, 10:57 amYankev says:
They don’t have a fondness for religious Jews, either. They will defend a Jew’s right not to be Christian, but they will oppose a Jew’s right to practice the Jewish religion just as quickly as they will oppose Christian practice. Witness their efforts to prevent the use of an eruv in some communities in NJ.
February 24, 2010, 11:01 amLaura(southernxyl) says:
Teacher: I’m a Mennonite, and I need to wear a little bonnet.
ACLU: But there’s the theoretical possibility that some child somewhere may have some nebulous thought process that links your bonnet to a government command that she be a Mennonite, regardless of the fact that none of the rest of her teachers wear a bonnet, so I can’t let you do that.
Where’s multiculturalism and diversity training when they can actually do some good?
February 24, 2010, 11:12 amDangerMouse says:
Where’s multiculturalism and diversity training when they can actually do some good?
Come on, Laura. You should know that those words only mean anti-Western culture, anti-white, anti-male, anti-Christian, etc. Diversity and multiculturalism has nothing to do with being diverse or multicultural. It’s all part of the culture of hate bred and fostered by liberalism.
Yankev, I think you’re right about religious Jews as well. I didn’t know about the eruv issue at all. Learn something new everyday.
February 24, 2010, 11:37 amGordo says:
First an update: Yesterday afternoon the Oregon House concurred in the Senate amendments by a vote of 48 to 7. So now it will be law unless the Governor vetoes it, which is doubtful.
Second, it’s interesting that the “no” votes in the Senate were evenly divided between Democrats and Republicans. It’s definitely not a party line issue.
Third, the existing statute is, in a sense, a “sister” statute to the notorious Compulsory Public Education Act passed by the KKK-dominated Oregon Legislature in the early 1920′s and struck down by the Supreme Court in the Pierce v. Society of Sisters decision from 1925. This statute was also originally enacted as part of the KKK legislative program – aimed at Catholics.
Finally, here is a copy of the statute as finalized by the legislature. HB 3686 B-engrossed.
February 24, 2010, 11:45 amOregon Legislature to Repeal Ban on Religious Dress by Teachers « The Republican Heretic says:
[...] Volokh Conspiracy also comments on the story: [...]
February 24, 2010, 11:49 amBama 1L says:
What is this Catholic garb of which you speak? The only Catholics obliged by religion to wear particular clothing nearly all the time are certain religious orders that certainly aren’t providing public schoolteachers nor ever would. You ought to use Muslims and Jews as your examples.
I am a fairly serious Catholic and I don’t understand why other fairly serious Catholics think they must leave their ashes on all day. I know of no teaching to this effect. Ash Wednesday, though well-attended, is not even a holy day of obligation. I could not make a straight-faced argument to, say, an employer that my religion obliged me to go through the day with ashes smeared on my head. It is, at best, an optional practice. You would have much stronger authority for refusing to eat meat on Fridays or even to work on Sundays.
Indeed, to hijack the thread, I think my religion says the opposite of what the ash-wearers say. All Catholics who attend Ash Wednesday services hear Matthew 16.1-6, 16-18, in which Christ commands those who fast to wash their faces, anoint their heads with oil, and otherwise refrain from actions that proclaim to the world their piety and self-denial. Along with having trumpets blown before one gives alms, leaving the ashes on all day seems more like something the Pharisees would have done.
So I wash my head after mass on Ash Wednesday. Anyway, now that so many Protestants have decided to ape this custom, I don’t think the ashes can really be held to mark a Catholic.
February 24, 2010, 11:54 amorca says:
Yeah, the Founding Fathers were kinda shrill.
February 24, 2010, 11:57 amd says:
My father told me about when some truly private religious schools decided to become “secular” for the purpose of receiving federal funds.
Now, I can’t say I remember much about it or even how true it was, but he would relate stories about how suddenly a place like Fordham was “secular” but 90-something% of its teachers were still collared priests or nuns.
February 24, 2010, 12:14 pmDangerMouse says:
Yeah, the Founding Fathers were kinda shrill.
Considering that they used to hold prayer services in the US Capitol, I’d have to say that you have no idea what the heck you’re talking about. But anyway, I was responding to Andrew, who was asking about “Catholic garb” and how if because of the demographics of the neighborhood meant that the school ends up hiring a bunch of Catholics, it would mean that they’re somehow endorses/establishes Catholicism. Of course the answer to that is no. God forbid, a bunch of Italians or Poles or Spanish neighborhoods would all be violating the First Amendment. Is this Know-Nothingism by another name?
It’s amazing that most people enter these conversations without the slightest idea of what it means to “establish” a religion. Hint: the Queen of England is also the Head of the Church, and taxes are used to support the state-supported religion of England. And in early America, in which states had Established religions long after the passing of the Constitution, there were penalties for failure to go to Church on Sunday or to support the established church.
Instead of fearmongering about the threat that a couple of Catholic teachers wearing crosses suddenly means that Obama is now the Pope, take a deep breath and learn the history of what Established Religions mean, what practices occurred in early America.
February 24, 2010, 12:14 pmMrs. Davis says:
Another good reason to get rid of public schools. They are just a hockey puck in the adult issue d’jour.
February 24, 2010, 12:16 pmLaura(southernxyl) says:
Orca, when the FFs said “Congress shall make no law … prohibiting the free exercise [of religion]” you think they were being shrill? I think you’re in the minority here.
February 24, 2010, 12:19 pmYankev says:
Didn’t these statutes arise out of 19th century hysteria that “Papists” would flood the teaching rolls with nuns and monks who would turn the school children into slaves to Rome?
February 24, 2010, 12:31 pmYankev says:
Go easy on Orca. He admitted on the Rushdie/Amnesty International thread that he gets easily confused over the simplest of concepts.
February 24, 2010, 12:33 pmADF Alliance Alert » Oregon Legislature About to Repeal Statute Barring Wearing of Religious Dress by Public School Teachers says:
[...] Volokh writes at the Volokh Conspiracy: . . . Prof. Howard Friedman (Religion Clause) reports that, “According to the Oregonian, [...]
February 24, 2010, 12:58 pmPersonFromPorlock says:
I still say the Free Exercise clause pertains to a state’s right to operate “an establishment of religion” free of federal interference, not to an individual right to religious exercise. Taken together, the Establishment and Free Exercise clauses amount to a very coherent prohibition on the establishment of a federal church or federal interference with the then-established state churches.
Not only is that the plain-sense meaning of the sentence (there’s nothing for the “thereof” to refer back to except “an establishment of religion”) but, if we take it to proscribe Congress’s interfering with religious exercise, then there’s no way to keep (for instance) Moloch worshippers in the District of Columbia from practising infant sacrifice.
The Constitution left religious liberty up to the states by not delegating any power to Congress to regulate it. That the First Amendment established any general freedom of religion is belied by its protecting the right of states to have tax-supported churches.
February 24, 2010, 1:00 pmCrunchy Frog says:
Let’s contine the threadjack.
AFAIK, Lutherans have always observed Ash Wednesday, along with the rest of Lent (minus the whole meatless Friday nonsense), but typically have AW services in the evening, after work.
I agree that having ashes all day screams of, “See how pious I am!”
February 24, 2010, 1:03 pmand is quite unseemly.
PersonFromPorlock says:
Ma’am, you’re mis-assigning the reference. See above.
February 24, 2010, 1:07 pmdearieme says:
“Hint: the Queen of England is also the Head of the Church, and taxes are used to support the state-supported religion of England”.
The post of King or Queen of England was wound up in 1707. As for taxes supporting the Church of England – really? I’ve lived in England on and off for more than 25 years and never noticed.
February 24, 2010, 1:19 pmLaura(southernxyl) says:
I disagree, Person. I think your understanding of the FA is kind of eccentric, actually.
You say this:
Wrong. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise [of religion]“. Nothing in there about states.
I seriously doubt the FFs thought that was enough of a concern to want to proscribe 99.99999% of people from doing what they reasonably should regarding their religions.
February 24, 2010, 1:21 pmShelbyC says:
You have evidence that any of the founding fathers had a problem with religious garb in the classroom?
February 24, 2010, 1:38 pmgeokstr says:
What’s the big deal if a teacher wants to wear the trappings of Naziism and claim it’s his religion? (shrug)
We already have thousands of professors in public universities openly preaching the gospel of the Religion of the Exalted KarlM. Their god’s teachings killed ten times as many people as Adolf’s.
February 24, 2010, 2:17 pmDonBoy says:
I don’t think that captures the reality. The problem is not that the student may think that “the government” endorses Catholicism; the problem is that the only authority that is relevant to the student — the teacher — may endorse Catholicism, and this teacher’s authority, in all things inside the classroom, is backed up by the state. Especially if, as in elementary school in my childhood, the child has only one teacher during the entire school year.
February 24, 2010, 2:36 pmPersonFromPorlock says:
I prefer ‘perverse’. But a case can be made….
February 24, 2010, 2:37 pmHistory Punk says:
I was put into Sped Ed due to a physical disability. Also, if you paid any attention to the real world, you’d know that the Christian use the OT to justify their hatred of the gays. I used Moses and Joshua as examples of the fact that the US, US law, and its citizens recognize that God and the Bible are, at least time to time, immoral.
February 24, 2010, 3:05 pmYankev says:
IOW, you are telling those Christians whom you disagree with that by being in your view intolerant, they are acting just like those immoral and intolerant Jews. How tolerant of you.
February 24, 2010, 3:13 pmLaura(southernxyl) says:
1 – Actual Christians don’t hate anyone. We are forbidden to do it.
2 – Lots of gay people are Christians. I know some, personally. Where’s their spot in your worldview?
February 24, 2010, 3:27 pmEstablishment-clause federalist says:
I second PersonfromPorlock’s view that the original meaning of the Establishment Clause was specifically to preserve the States’ ability to have established churches; thus, Congress could pass no law “respecting” the State’s establishments. That argument is well-known in some circles.
I hadn’t heard that argument regarding Free Exercise, though. I understand the idea that, pre-incorporation, it was not meant to restrict States’ power to regulate their citizens’ behavior. But I think it’s still plausible to read the Free Exercise clause as preventing Congressional attempts to regulate citizens directly (so it’s redundant with the lack of Congressional power, as with Bill of Rights generally), even if the Establishment Clause is only about preserving State power. The “thereof” refers to the “religion” in the first clause, but the “respecting” hook is only in Establishment, not Free Exercise, so they could still be different.
Or perhaps both are as Porlock says. I’ll have to look into that.
February 24, 2010, 3:30 pmBama 1L says:
Yes, Nativists, the Klan, etc. feared this but the odd thing is that the Vatican and nearly all Catholic bishops in America opposed such a development about as much as they did.
If you are interested in this subject, read up on John Ireland, archbishop of St. Paul 1888-1918 and the Faribault-Stillwater Scheme. He very briefly achieved a fusion of public and Catholic education, but his chief opposition came, oddly enough, from Catholics, particularly German-speaking ones.
February 24, 2010, 3:32 pmStephen Lathrop says:
I would prefer a school system which kept expressions of teacher religion out of the classroom. The argument that students will understand that teacher religiosity is purely personal falls apart as a practical matter. In many small communities culture and religion tend toward uniformity. A religious principal may, and quite often will, make it a point to hire co-religionist teachers.
Students whose personal views are exceptions to local norms will feel excluded and pressured if most authority figures use subtle and not-so-subtle means to press conformity. That shouldn’t be happening on the public dime.
In my public school in Maryland, following Brown vs. Board of Education, we got sudden complete integration of our previously segregated school. It was chaotic, but nevertheless to Maryland’s credit.
To its discredit, teachers were permitted personal campaigns of sabotage. We found ourselves singing “The Bonny Blue Flag” (“Hurrah! Hurrah! For Southern rights, hurrah!”) and, endlessly, “Maryland My Maryland” (“The despot’s heel is on thy shore, his torch is at thy temple door.”)
When it came to the Battle Hymn of the Republic, my anti-integrationist teacher had an obvious problem. She solved it as best she could by dismissing the first 4 verses and teaching us the 5th:
(“In the beauty of the lilies Christ was born across the sea,
With a glory in His bosom that transfigures you and me:
As He died to make men holy, let us die to make men free,
While God is marching on.”)
“To me, that’s the most beautiful verse,” she told us.
How do you think all this made the black kids feel? Integrated?
The danger of religious expression, or any kind of extra-curricular expression, in the classroom can readily be dismissed by resorting to the notion that it’s a product of diversity in the teacher culture, and not really typical. The problems arise when that is not so. Laws to prevent those problems are reasonable.
February 24, 2010, 3:51 pmDavid Schwartz says:
This argument just doesn’t work. The gist of the argument really is that there’s a slippery slope and while this might be on the safe side, sooner or later we’ll get to the dangerous side. But so what? This is exactly the kind of slippery slope where the government has no choice but to resolve each individual question.
The government is pulled by two compelling forces. On one side, it must not discriminate as employer, because it acts in the name of the people. On the other side, it has a legitimate business purpose in controlling how teachers act in its classroom. Each force pulls in the opposite direction, and each force is compelling.
So it has no choice but to conduct a careful and rigorous balancing, and this is precisely what the constitution requires. Any attempt to “stay completely safe” on one side is unfair to the other side.
What problem do you see with fairly balancing these competing interests in each case just as a rational private employer would? We can address the “very next step” when someone brings it up. Your “very next step” is only a problem because the calculus for that step is different (the harm is greater). So there’s no reason to think the answer wouldn’t be different if the question is different.
February 24, 2010, 3:56 pmDonBoy says:
Having just reviewed the lyrics of the Battle Hymn of the Republic, I think if you weren’t taught the historical context you’d have no idea that it had anything to do with the abolition of slavery; and the line most apropos to that is in the verse that the teacher used (“As He died to make men holy, let us die to make men free”). So in this case I don’t see how the black kids would feel slighted.
February 24, 2010, 4:14 pmLaura(southernxyl) says:
Then nothing is stopping a state in the Bible Belt from declaring Christianity to be the state religion, and reinstituting prayer in the schools. Wow, stop the presses.
February 24, 2010, 4:33 pmSodlier of Fortune says:
I can’t wait for the first Muslim teacher to wear a burka to class. I’m sure that will go over big on parent’s night.
February 24, 2010, 4:42 pmJ. Aldridge says:
The law only applies to teachers in public schools, not teachers in their homes or at church. Freedom of speech has nothing to do with yelling anything in a crowded building.
February 24, 2010, 4:43 pmKen Arromdee says:
Ah. Everyone who doesn’t fit your standards obviously isn’t an actual Christian. Or was that No True Scotsman?
February 24, 2010, 4:45 pmLaura(southernxyl) says:
It’s not my standards, buddy.
February 24, 2010, 5:00 pmEstablishment-clause Federalist says:
Laura(southernxyl) -
Don’t worry, there’s no chance this view will ever become law. I’m not even saying it should be the law. I’m just noting that the better historical scholarship shows that this was, in fact, the original understanding. There’s the text, there’s contemporaneous discussion of the principle, and there’s the fact that several states continued to have established churches after the First Amendment, and no one seemed to question whether that was a problem. I think some Thomas might have referred to this view in some dissent somewhere, but I’d have to look it up.
Aside from the impossibility of this view of Establishment Clause ever getting anywhere, there’s also the hurdle that all states (I think) have religion clauses in their state constitutions, so I don’t think we’d see official establishments in the old sense. Even the states that might have the numbers to adopt “Christianity” and put up a Ten Commandments monument probably couldn’t set up an endorsed, funded system the way the established churches were. I don’t think any state has enough single-denomination dominance for that. But that’s far afield of the historical point, anyway.
February 24, 2010, 5:10 pmJ. Aldridge says:
Or indoctrinates students to be good little martyr’s.
Can’t wait to learn about all the “hidden” exceptions that would prevent that.
Original meaning will always trump court created meaning.
February 24, 2010, 5:13 pmbud says:
That’s the historical provenance of the law. Some very predominately RC rural school districts essentially out-sourced their “public” school system to the local diocese. The state legislature used this law to break up these sorts of arrangements. Today, of course, with many religious orders no longer requiring habits, this wouldn’t work.
February 24, 2010, 5:19 pmSammy Finkelman says:
No, we might be, because this law is 87 years old = passed around 1922 or 1923, at a time when Oregon tried to outlaw non-public schools.
You may have heard of Pierce v. Society of Sisters…, 268 U.S. 510 (1925)
http://supreme.justia.com/us/268/510/case.html
2. The Oregon Compulsory Education Act (Oreg. Ls., § 5259) which, with certain exemptions, requires every parent, guardian or other person having control of a child between the ages of eight and sixteen years to send him to the public school in the district where he resides, for the period during which the school is held for the current year,
It would have been effective September 1, 1926.
Interestingly, it did not apply to any child who had successfully completed the 8th grade. (which usually happens at aghe 13)
Or if they were too young and lived too far away.
It allowed for home schooling either by a parent or a private tutor, but the parent would have had to receive written permission from the county superintendent, and such permission was only good to the the end of the current school year and the child had to be tested least once every three months.
Anyone who didn’t comply would be guilty of a misdemeanor and fined between $5 and $100 (1920′s Dollars) and and/or jailed between 2 and 30 days.
February 24, 2010, 5:20 pmShelbyC says:
It’s hard to imagine, even in the 18th century, how Congress could pass a law prohibiting states from freely exercising an establishment of religion, so it seems pretty clear it refers to individual exercise. But I’d imagine that the establishment clause would both prevent the federal government from creating its own establishment, and prevent it from interfering with the states’ establishment.
February 24, 2010, 5:24 pmJ. Aldridge says:
Probably because the 1A reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” and not “exercising an establishment of Religion…”
But as James Madison said, the 1A had nothing to do with states but served as proof no power was granted to Congress over religion, speech, the press or assembly.
February 24, 2010, 5:44 pmClayton E. Cramer says:
No, there would be no problem requiring you to wear clothes covering the naughty parts, as long as it wasn’t passed specifically to disadvantage your weird religion. However, Oregon courts have found that nude bicycling is protected free speech–so you could certainly put an interesting case before the courts based on this nonsensical misreading of the Oregon Constitution’s guarantee of freedom of expression.
To make sense, you have to look at original intent–not twisting it as suits your desires.
February 24, 2010, 7:39 pmClayton E. Cramer says:
It will in the Portland area. (I think.) Still, I have a very, very progressive sister that lives in Portland–and even she was a bit taken aback when the vice-principal of the junior high started wearing a bone through her nose.
February 24, 2010, 7:43 pmClayton E. Cramer says:
Of course, Madison’s first proposal would have extended protection of freedom of conscience to cover the states as well. The rest of Congress didn’t go along.
February 24, 2010, 7:45 pmClayton E. Cramer says:
Except for the 14th Amendment.
February 24, 2010, 7:46 pmStephen Lathrop says:
I see your point. But I forgot to mention we were taught the “modern” version (it’s referenced by a footnote in the Wikipedia article on the lyrics.) In that one the lyric is, “…let us live to make men free.”
That aside, I think you can assume most of the black community in Maryland in the 1950s understood the historical context of the Battle Hymn of the Republic.
We shouldn’t spend too much time on the details of an example. The point is that pervasive cultural influences make their way into schools. If you think some of those influences are Constitutionally inappropriate, you may need to do something about that.
February 24, 2010, 7:53 pmJ. Aldridge says:
Yeah that had as much chance of being approved as giving Congress authority to regulate state labor and industries.
February 24, 2010, 8:05 pmBama 1L says:
I would be interested to know if any of these partnerships were formed in Oregon; my impression was that the relevant prelates were of the conservative axis that opposed them and instead favored completely autonomous parochial schools.
February 24, 2010, 9:16 pmliamascorcaigh says:
Catholic garb? You mean t-shirt and torn jeans? A lounge suit? A summer dress? A grass skirt? A kilt? What in the name of St. Francis are you talking about?
Or do you mean clothing worn by the clergy and religious orders? Such garments are exclusive to such people. No Catholic would wear them or if he did he’d have had to be off his meds for a loooong time; in addition to which his cassock would clash in a most unfortunate way with his tin foil hat!
Any psychologically stable person affecting such clothing would immediately be regarded by Catholics as a conman out to scam devout old ladies of their welfare check.
February 26, 2010, 4:50 pm