Wednesday, February 22, 2017

It is illegal in Nebraska, for a teacher in a public school to wear a cross necklace under a state law passed in 1919. You won't believe why!

**I am not a lawyer, just a dedicated nerd.  Courts determine innocence or guilt of crimes.  Title is intentionally sensationalized! because this stuff is deep and I wanted to provide some levity**

Let's take a closer look

On Wednesday the Nebraska Unicameral will begin the second day of General File floor debate on LB 62 (LB 62 Document Page).  I am really hoping for high quality debate on this bill.  It touches on some very important issues of both religion and law, and our style of doing state government provides an opportunity for anyone to increase their exposure to a handful of legal topics, in real-time, from the source: the Unicameral itself.  Topics likely to be discussed tomorrow might include the Separation of Church and State/Establishment Clause, the doctrine of Reasonable Accommodation, the notion of "compelled speech".  We also might see examples of various procedural methods of amending law, amending bills, and discussion of the phrase 'the opening of the statute for modification", something applicable to all bills and laws.


The prohibitions against wear of "religious garb" does not single out Christianity's crosses and Catholic habits, it extends as well to yamakas or the Star of David worn by Jews, to hajibs and the Crescent Moon of Islam, or any other object that is worn out of a person's religious conviction. From a review of the transcript to LB 62's  Public Hearing, we learn that almost a hundred years ago, the KKK lobbied for and secured passage of, similar religious garb bans in 35 other states, because they didn't want nuns educating their children with views that disagreed with their white-superiority beliefs. These bills were not difficult to get passed because at that time there was a great anti-catholic fervor sweeping the country, the ripples of which I felt in rural OK growing up. The protestant American people of the time were in fear the Catholics, many of them immigrants from Europe, might attempt to undermine America itself by electing a Papist-Sympathizing President. Might seem odd now, but it was a widely held fear back then. Since that time, all states have repealed their bans on the wear of religious garb by public teachers with the exception of Nebraska and Pennsylvania.
(Transcript of Education Committee Public Hearing on LB 62)

I'd like to review some of the arguments made Tuesday as a preview on what we may hear Wednesday:

1) As written, LB 62 would repeal two sections of state law which contain variously: language establishing criminal offences, language establishing criminal penalties for offenses, language compelling actions/speech. With passage of LB 62, notwithstanding local school dress codes, any teacher could wear any item of "religious garb."

2) Sen Schumacher has voiced a concern I think might be slightly in the legal weeds, but is valid enough to deserve mention. If the statutes are repealed the following hypothetical situation could occur: Two middle-aged public teachers, identical male twins, one a catholic bishop the other an agnostic LBGQT advocate, could both desire to "wear pink patent leather slippers and a pink frock" while teaching in a Public School. With the repeal of the statues, he posits, schools might allow the bishop to wear the clothing by way of the man's first amendment right to freedom of religion (as the uniform of a church officer), but might deny the agnostic (due to the clothing causing potential disorder in the classroom).  Sen Schumacher feels this might create a situation where the State offers preferential treatment to a person with positive religious affiliation over someone with no religious affiliation, something he feels might violate the 1st Amendment's Establishment Clause.  I think the dress code policies of local schools make this a moot point, but there is some merit to the argument.

3) Senator Chambers also takes issue with LB 62.  Sen Chambers utilizes a particular style of oratory in floor debate - always speaking with the knowledge his words are being recorded for History as a matter of the Public Record.  He often splits his speaking time between using rhetoric to make the point of his position, and separately discussing the procedural or legal substance of his position. In floor debate today he rhetorically asked, "If the Catholic Lobby feels so strongly that the current law is unconstitutional, why haven't they challenged the law in the courts?"  Although it might be considered inflammatory by some, and perhaps rightfully so, in my view that question is an incredibly dense piece of intellectual work, asking several layers of different questions regarding matters of law, important social issues, and data that can be found in the public record.

The technical answer to his question, insofar as I understand it, is that in order for the Court to determine the garb ban is indeed unconstitutional, a person with "Standing" is required to bring a suit before the court. To establish Standing is a not-simple legal topic, but I'd offer the gist is this: a Concerned Party would have to wear religious garb in the classroom in violation of current law, and be charged of violating the law by an agent of the State.  At this point the Concerned Party, now Defendant, could ask the Court for relief, something also guaranteed under the First Amendment, freedom to "petition the government for a redress of grievances".  From most of the cases I've read, it's about here that lawyers specializing in this type of law are typically procured for the Defendant, often retained by religiously affiliated lobbies.  Those lawyers, together with the AG defending the law, would then make their arguments to the court, first in written briefs outlining the legal aspects of their case, then in open court discussing the merits of their case through timed question and answer, with the Court making final determination on constitutionality of the law. I'm fairly certain the Court would strike down the current law as a clear and blatant violation of the First Amendment's protection of religious freedom, so clear is the question of the law the ACLU testified in favor of this bill as necessary to correct the current unconstitutional statues.

Secondly, moving from the Judicial side to the Legislative side of this, Sen Chambers has announced his intention to introduce an amendment Wednesday morning that would strike the punishment and crime language from current law, but would retain the prohibition against religious garb. I expect a very high level debate on the Chamber Amendment tomorrow, but as a primer, Senator Chambers voiced concerns he has with the how the Nebraska Justice System interfaces with children in his constituency. He says he is aware of students belonging to the LGBQT community enrolled in Public Schools, where a teacher of the student both wore religious clothing and made strong strong religious statements regarding homosexuality in the classroom. When the parents of the student kept the student out of school to prevent what they saw as the student's harassment, the county took legal action against the student and his parents under Nebraska truancy laws. Senator Chambers feels strongly that religion has no place in Public Schools because he feels "children should not be forced to become involved in the arguments held between grown adults". I will admit I'm not swayed by the arguments commonly presented by the Freedom From Religion Foundation, which are very similar to Sen Chambers's argument here, but part of being a student of the law is maintaining an open mind. I'm very much looking forward to listening to the debate to get a better handle on the legal aspects of the various arguments being offered.

I cannot recommend tuning in to the debate strongly enough.  The snippets of things we hear in the media do not come close to encapsulating the complexities found in the making of law.  My intuition says the Chambers Amendment will not be adopted, and LB 62 should advance to Select File today.  If anyone has questions on any statements I made above, or on the debate that goes down Wednesday, hit me up!