In February 2010, the Oregon legislature will have a historic opportunity to repeal ORS 342.650, a state law that forbids public school teachers from wearing religious dress in the classroom.

According to press reports and historical literature published by the State of Oregon about its own history, ORS 342.650 originated in the 1920s as an anti-Catholic measure and was supported by the Ku Klux Klan at a time of overt hostility toward racial and religious minorities. Other laws enacted by the Oregon legislature during this period included the Compulsory Education Act (a measure designed to close parochial schools) and the Alien Property Act of 1923 (a law that prohibited Japanese immigrants from purchasing or leasing land in Oregon). Although two of these laws have since been repealed, ORS 342.650 is still enforced against religious minorities, including observant Sikhs who wear dastaars (turbans); observant Muslims who wear hijabs (headscarves); and observant Jews who wear yarmulkes (headcoverings).

Although some supporters of the status quo argue that ORS 342.650 protects students from religious indoctrination, Oregon appears to be one of only three states in the country (including Nebraska and Pennsylvania) that continue to impose such stringent restrictions on public school teachers. This is prima facie evidence that ORS 342.650 is a ‘blunt instrument' and that a less restrictive balance can be struck between the state's interest in promoting religious neutrality and its obligation to protect civil rights. The case for repealing it was bolstered last November when two key state agencies-Oregon's Bureau of Labor and Industries, and the Oregon Department of Education-issued a joint memorandum urging repeal.

In some ways, the fate of ORS 342.650 will be a bellwether for Sikhs in the United States, who continue to struggle against hate crimes, school bullying, and workplace discrimination in the post-9/11 environment. If Oregon repeals ORS 342.650, this could signal a willingness on the part of states to embrace diversity; give religious minorities the right to find self-fulfillment and economic security in any career they choose; and reassure individuals that they are not second-class citizens because of the way they look. 

Religious neutrality need not undermine diversity or entail categorical suppression of an individual's right to constitute his or her own identity as a human being. Religious freedom and neutrality can-and do-co-exist in the United States, and we can no longer pretend (as the KKK did) that we live in a monochrome nation. In this context, Oregon has a historic opportunity to mark the start of a new decade in the 21st century by expanding civil rights and definitively burying one of the last relics of the Ku Klux Klan.

In the small Oklahoma town of Wakita, a prison ministry group is seeking to build a private, "all-Christian" prison. Inmates would be required to take part in "Christ-centered" programming. All of the prison's staff would be Christian believers.

Sounds at all familiar? If so, that's probably because a couple years ago, in Americans United for Separation of Church and State v. Prison Fellowship Ministries, a federal appeals court declared unconstitutional a prison cellblock that was similar. Creating an entire "all Christian" prison would be an even more egregious violation of the Constitution.

As explained in a letter from Americans United for Separation of Church and State to Oklahoma prison officials, taxpayer funds would be used to support religious indoctrination. Public funds would aid the prison's religious discrimination in employment as well. What is more, as jailers have a great deal of power over the prisoners under their control, the prison's inmates would be highly vulnerable to religious coercion.

Fortunately, the Oklahoma Department of Corrections appears to have little interest in sending inmates to the contemplated "all Christian" prison. And many municipalities rejected proposals that they host the institution, before Oklahoma's Wakita was approached.

One advocate of the proposed prison explained that the project had not been accepted because of "Satan": "He exists, he doesn't [want] this project to succeed. He is doing everything he can to defeat this project and he is using good people with good intentions. Satan is much more powerful than anybody in this room, he will twist that person around where they think they are doing the right thing in fighting it."

Rather than "Satan," prison systems and communities that have spurned the prison proposal have been rightfully concerned about complying with the Constitution, avoiding legal liability, and not turning their inmates over to an unknown and unproven entity. Wakita, as well as any other towns and states to whom the proposed prison may be brought, should reject the project for the same reasons. 

The Supreme Court added a habeas case to its docket and asked the Solicitor General to weigh in on whether it should review a case involving lawsuit lodged against the Vatican. In Magwood v. Culliver, the high court will consider whether a second habeas petition to a new death sentence is constitutionally permissible, SCOTUSblog reports. The justices also asked the Solicitor General to offer her views in Holy See v. Doe, involving an Oregon lawsuit seeking damages over alleged sexual abuse by a Portland, Ore. priest.

The justices, without comment, rejected several cases including a trademark challenge to the NFL's Washington Redskins' name and a former high school student's First Amendment case.

In Harjo v. Pro-Football, Inc., a group of Native Americans sued the Washington football team in 1992 arguing that its name violates a provision of trademark law, which bars registration of names that "may disparage ... persons, living or dead, ... or bring them into contempt, or disrepute," The Washington Post reports. Lower federal courts had rejected the lawsuit, in part, claiming it had been filed too late.

In McComb v. Crehan, the Supreme Court, also without comment, declined to review a federal appeals court ruling that upheld Nevada public high school officials' decision to silence Brittany McComb's commencement speech after she veered from prepared text into a discussion of her Christian beliefs.

Citing her religious beliefs, a Texas public school teacher is fighting a state law that requires teachers to be fingerprinted. Pam McLaurin, a kindergarten teacher in the Big Sandy Independent School District outside Houston, said that fingerprinting represents a sign of the beast, a reference to the Bible's book of Revelation.

Revelation states that people who worship "the beast and his image and receives his mark on his forehead or on his right hand," shall draw God's wrath. McLaurin's attorney says the law, which could prompt the teacher's dismissal, violates her First Amendment free exercise of religion right. The attorney, Scott Skelton, told Wired that McLaurin firmly believes that computerized fingerprinting is the mark of the beast referenced in Revelation. "This law prohibits the free exercise of her religion," he told Wired.

The Texas Education Agency has told Big Sandy school officials that McLaurin would be barred from teaching if she doesn't get fingerprinted. Wired notes that McLaurin's lawsuit is similar to one lodged by a group of Michigan farmers against a state requirement to tag livestock with RFID chips. The group claims the tagging would represent a demonic mark.

George Washington University Law School professor Jonathan Turley lightly examines McLaurin's lawsuit on his blog. He notes:

Fingerprinting does not leave a mark on your hand or forehead. It leaves it on a piece of paper that is then digitized. Under this bizarre interpretation, any ink, lotion, or impression left by McLaurin's fingers could constitute a sign of the Beast. However, she is willing to take a photo and presumably a optic scanner or other imagining picture. Thus, what if the state simply takes a picture of her fingerprints directly on a digitized scanner? How is that different from asking her to take a high-resolution picture?

"A little-noticed" measure in the healthcare reform bill would require insurers to consider covering Christian Science prayer treatment as medical expenses, the Los Angeles Times reports. The newspaper says the provision has the backing of Sens. Orrin Hatch and John Kerry, as well as lobbyists for the Christian Science Church. Phil Davis, a church official, tells the Times, "We are making the case for this, believing there is a connection between healthcare and spirituality. We think this is an important aspect of the solution, when you are talking about not only keeping the cost down, but finding effective healthcare."

But the newspaper notes supporters of the First Amendment principle of the separation of church and state are concerned that the provision would amount to federal funding of religious services.

Erwin Chemerinsky, a constitutional law expert and dean of the UC Irvine School of Law, told the newspaper, "I think when Congress mandates that health companies provide coverage for prayer, it has the effect of the government advancing religion."

Sen. Hatch said he was pushing the provision because "everyone, regardless of religious affiliation, should have access to healthcare."

A pediatrician and medical ethicist at the University of Wisconsin said the provision, however, should be dumped because it would pay for services that are not medical.

"They want a special exception for people who use unproved treatments, and they also want to get paid for it," said Dr. Norman Fost. "They want people who use prayer to have it just automatically accepted as a legitimate therapy."

While the U.S. military's discrimination against openly LGBT soldiers has drawn fire and promises of change, the ban on Sikh soldiers has gone virtually unnoticed. And despite a recently announced waiver for one Sikh doctor, military policy continues to bar the unshorn hair and turban traditionally expected of Sikh men.

The Sikh Coalition, an organization started to fight discrimination in the wake of 9/11, has the facts:

Two Sikh men, Captain Kamaljeet Singh Kalsi, a doctor, and Captain Tejdeep Singh Rattan, a dentist, were recruited to join the Army's Health Professions Scholarship Program several years ago. Both maintained their turbans throughout the four year program, and appeared in uniform during specialized Army training, at Army ceremonies, and while working in military medical facilities.

Nevertheless, after completing the program, they were told that they must remove their turbans and cut their unshorn hair and beards for active duty. Rather than abandon their Sikhi, they chose to appeal to Army leadership to end its policy of Sikh exclusion from service. Today, the Army decided to accommodate Captain Kalsi and defer a decision on Captain Rattan's appeal until he completes his dental certification.

Last August, 43 members of the House of Representatives and six senators asked Defense Secretary Robert Gates to change the military's policy towards religious expression by Sikhs in the service. The policy remains in place, however, and the Army's decision permitting Kalsi's service is limited to his current command and his service must be reauthorized upon transfer or deployment.

"I am willing to lay down my life for America. In return, I ask only that my country respect my faith," Rattan said last April when he appealed the Army's initial decision barring his admission to the service. "My turban and beard are not an option - they are in intrinsic part of me."

Talk of a lawsuit challenging school-sponsored religious messages at a Georgia public high school's football games has prompted an unpopular decision by the school board and fans to bring signs bearing Christian messages to the games. As reported in The New York Times, for eight years cheerleaders at Lakeview-Fort Oglethorpe High School created large paper banners painted with Christian messages like "Commit to the Lord" that the football players then charged through at the beginning of the games.

In the 1960s, the U.S. Supreme Court issued decisions (see Engel v. Vitale and Abington Township v. Schempp) concluding that the First Amendment prohibits public school officials from sponsoring or promoting religious activity. Those decisions found that truly voluntary student expression of religious beliefs did not subvert the First Amendment principle of the separation of church and state. 

When a parent contacted public schools officials in Fort Oglethorpe about the banners, they agreed that the high school's involvement in promoting religious messages was likely constitutionally suspect and could prompt a lawsuit on First Amendment grounds. So the school district created a policy barring the public high school cheerleaders from creating the religious banners. That action spurred a group of fans to start brining placards and wearing T-shirts to the games emblazoned with Christian messages.

Jeff Porter, owner of T-shirt shop that has sold many shirts bearing the religious slogans, told the newspaper, "It's the Bible Belt. I understand that the majority doesn't rule, but it seems unfair that one lady could complain and cause this to stop."

But Charles Haynes, the senior scholar at the First Amendment Center, in an interview with The Times, said that fans and school officials were now acting in concert with constitutional strictures. "They've just proven that Jefferson and Madison got it right. It's a reminder of the difference between religion that's state-sponsored and religion that is vital, voluntary and robust," he said.

In his show last night, Stephen Colbert examined the issue of chruch-state separation. He focused on the exchange between attorney Peter Eliasburg and Justice Antonin Scalia during last week's oral argument in Salazar v. Buono, involving a religious symbol on public land. For a more serious analysis of the case, see an ACS guest blog here.  

The Supreme Court heard argument last Wednesday in Salazar v. Buono, an Establishment Clause challenge to the federal government's display of a Latin cross in the Mojave National Preserve. The Court's questions focused largely on esoteric procedural doctrine, and while it's always risky to predict the outcome of a case based on oral argument, it seems unlikely the Court will rule on the broader constitutional issues in the case - namely, whether the plaintiff, a devout Catholic and former National Park Service employee, had standing to challenge the display of the cross; and whether, before it tried to transfer the cross to a private party, the government violated the First Amendment by displaying the sectarian symbol on federal land. (The lower courts decided those issues in favor of the plaintiff in the first round of the case, and the Bush Administration chose not to seek Supreme Court review at the time. As a result, the Court now appears disinclined to revisit those rulings.)

But while the Supreme Court ultimately may pass on the loftier constitutional questions in Buono, Wednesday's argument did have some dramatic moments. In the most heated exchange of the morning, Justice Antonin Scalia peppered Peter Eliasberg, the ACLU attorney arguing for the plaintiff, with questions about the significance of the cross. Justice Scalia bristled at Eliasberg's suggestion that a World War I memorial featuring only a Christian cross sends a message of exclusion and religious favoritism, asking, "The cross doesn't honor non-Christians who fought in the war?" After Eliasberg responded that the cross "is the predominant symbol of Christianity," Justice Scalia pushed back, suggesting that there was no constitutional problem with the display because "the cross is the most common symbol of the resting place of the dead." Eliasberg resisted, explaining that "the cross is the most common symbol of the resting place of Christians." "I have been in Jewish cemeteries," continued Eliasberg, the son of a Jewish World War II Navy veteran. "There is never a cross on a tombstone of a Jew."

The notion that a war memorial featuring a stand-alone Latin cross serves to honor only Christian war dead - a notion Justice Scalia called "outrageous" - was echoed in a series of amicus briefs filed in the case by various veterans groups, including the Jewish War Veterans, the American Muslim Armed Forces and Veterans Affairs Council, the Muslim American Veterans Association, and a group of high-ranking retired military officers. However the Buono case is resolved, it will be difficult, if not impossible, to convince many non-Christian veterans that an isolated, freestanding cross expressly recognizes their service to the country. And Congress's designation of the Mojave cross as one of only 49 national memorials (and the only one commemorating World War I), joining such iconic symbols as the Washington Monument and Mount Rushmore, only compounds the problem. As one retired Army brigadier general recently put it, "The cross is unquestionably a sectarian religious symbol that, as a congressionally designated national memorial to veterans, would convey the message that the military values the sacrifices of Christian war dead over those of service members belonging to other faiths.

The U.S. military has always been religiously diverse, from the Revolutionary War, through World War I (when, for example, an estimated 250,000 Jews served in the U.S. Army), to the present (11 percent of current active members of the military say they belong to a non-Christian faith, and an additional 21 percent are atheists or report no religion). But unlike individual headstones for fallen American soldiers - which appropriately reflect the varied, personal religious preferences of those brave men and women, - the Mojave cross claims to speak for all veterans. Surely, there are other government-sponsored, national symbols that can serve that purpose admirably (the American flag comes to mind), without dividing the country along religious lines.

"I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew," observed ACLU lawyer Peter J. Eliasberg during oral argument in Salazar v. Buono this week. The case presents the issue of whether a cross erected by the Veterans of Foreign Wars (VFW) to honor war dead on federal land is permissible under the Establishment Clause of the First Amendment.

Eliasberg was fielding pointed questions from Justice Antonin Scalia on whether a cross commemorating fallen soldiers is a Christian symbol. When Eliasberg argued that the cross is generally a Christian symbol, and therefore it honors only the Christian fallen, Scalia replied, "I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion."

Discussing the exchange at The Huffington Post, ACS Board member and University of Chicago Law Professor Geoffrey R. Stone reminds readers how the Founders viewed the role of Christianity in American law:

There was a time in the United States, early in the nineteenth century, when some judges claimed that Christianity was the rock and foundation of American law. In 1811, for example, New York Chancellor James Kent upheld a blasphemy conviction on the ground that "we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity." Other religions, Kent added, were not protected against derision, because the United States was premised on Christianity and "not upon the doctrines or worship" of Judaism, Islam or Hinduism, which he dismissed as mere "imposters" and "superstitions."

At the time, men like John Adams and Thomas Jefferson sharply criticized this view. In 1828, Jefferson wrote a celebrated attack on the claim that Christianity was a part and parcel of the law of the land, concluding that it was a sheer fabrication. Over time, Adams and Jefferson carried the day, and the argument that American law is an extension of Christian doctrine faded from view.

...

Mr. Eliasberg's point wasn't about whether the members of the VFW who erected the cross did or did not intend to honor the non-Christian dead. It was, rather, that the very presence of the cross changed the nature of the space into one belonging to Christians. This observation was hardly provocative or "outrageous."