Oops, it did it again

William Perry Pendley
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Posted: May 31, 2006 5:05 PM
On June 1, a California husband and wife filed a petition with the U.S. Supreme Court asking it to review a ruling by the U.S. Court of Appeals for the Ninth Circuit. In Eklund v. Byron Union School District, a Ninth Circuit panel upheld a federal district court’s rejection of two families’ claim that their children’s school violated the Establishment Clause when it taught them how to “become Muslims.” In a short unpublished opinion, the three-judge panel affirmed the lower court’s ruling. Later, the entire Ninth Circuit declined to rehear the case.

In 2001, Excelsior Middle School in Byron, 40 miles east of San Francisco, advised a classroom of twelve-year olds that, “[for the next three weeks], you and your classmates will become Muslims.” Thereafter, the students memorized portions of the Koran, chose Islamic names, wore tags bearing their new Islamic names alongside the Star and Crescent Moon—the symbol of Muslims, completed the Five Pillars of Faith, and recited Muslim prayers. Ironically, the teacher’s edition of the course textbook warned: “Recreating religious practices or ceremonies through role playing activities should not take place in a public school classroom.”

In June 2002, the families, represented by the Thomas More Law Center, sued saying that teaching Islam in the Excelsior public school violated the U.S. Constitution, which mandates government neutrality regarding religion. In particular, the school district’s actions fail every Supreme Court test; they: lack a secular purpose; primarily advance religion; excessively entangle government with religion; endorse a particular religious belief; and coerce students to participate in religion. Nonetheless, a California federal district court judge appointed by Clinton ruled the course lacked "any devotional or religious intent" and was only educational. Notwithstanding a double standard between how the district court treated Islam and how federal courts have treated other religions in the classroom, the Ninth Circuit agreed.

It is not the first time that the Ninth Circuit has bent over backward to permit government endorsement of religions other than the Judeo-Christian faith. In May 2003, a panel of the Ninth Circuit ruled that a Latin cross erected on federal land in the California desert to commemorate those lost in battle in World War I violated the Establishment Clause because it was a clear symbol of Christianity. Less than four months later, another panel of the Ninth Circuit ruled that an Arizona regulation that prohibited a man from using his private property because his land is sacred to three American Indian tribes did not violate the Establishment Clause because American Indians’ religion is intertwined with their history and culture. Curiously, the historical and cultural importance of the Latin cross was irrelevant to whether its presence violated the Establishment Clause.

The Arizona man asked the entire Ninth Circuit to review its decision given the obvious conflict in the manner that the Ninth Circuit treats various religions. The Ninth Circuit refused to rehear the case en banc and the U.S. Supreme Court declined to review the holding. Now comes the Excelsior school case with its ruling that teaching children how to “become Muslims” is permissible because such instruction involves a different culture and is educational. What makes the ruling particularly egregious is that, for decades, courts have barred all religion from the classroom, from the Ten Commandments, to nondenominational prayers, to moments of silence.

The Ninth Circuit has one more chance to get it right. Pending before the Ninth Circuit is a Nevada case where the U.S. Forest Service declared Cave Rock, a popular climbing spot near Lake Tahoe, off limits to climbers because the federal land has religious significance to American Indian religious practitioners. In fact, the Forest Service even declared that the “spiritual power” present at Cave Rock is a resource the Forest Service is obligated to protect. When a climbing group sued, the Nevada federal district court, relying on the Ninth Circuit’s opinion in the Arizona case, upheld the closure.