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A very defective prohibition
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A very defective prohibition
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By Mike Kaarhus

07 OCT 2011. UNITED STATES - The Fremont School District in Fremont, Nebraska has used its dress code to ban students from wearing rosaries.  When a 12 year old student wore one, the Principal told her she had to remove it.  The story made the KETV news in Omaha, and was later picked up by TheBlaze.com.

The School District's complaint about rosary-wearing is stated in the dress code section of the 2011-2012 Fremont Middle School Student-Parent Handbook:

We have received confirmation from the Fremont Police Department that there have been documented cases of gang activity in the Fremont community and that the wearing of a rosary as jewelry can be considered a gang symbol or a sign of gang affiliation. The wearing of rosaries as jewelry at school, at a school function, or in a vehicle used for school purposes is prohibited. Please be advised that students are subject to the various disciplinary consequences and procedures. (2011 FMS Handbook, page 6)

Here I argue the prohibition on rosary-wearing is defective, inept, and discriminatory.  In that prohibition, Superintendent Sexton and the Fremont School District made six fundamental errors: one of logic, one of law, one of subjectivity, two non sequiturs, and one of obduracy.  Here's the logic error:

A criminal does x.
Everything criminals do is wrong.
Therefore, it is wrong to do x.

[St. Dismas and Christ]

But not everything criminals do is wrong.  For example, two criminals were crucified with Jesus.  One of them mocked Him.  But Dismas the faithful criminal said, Jesus, remember me when you come into Your Kingdom, to which Jesus replied, Truly, I say to you, today you will be with me in Paradise.  Is it wrong to say Jesus, remember me, just because a criminal said it?  Similarly, if a criminal receives last rites before being executed for a capital crime of which he is guilty, does that mean it is wrong to receive last rites before death?  The fact that some criminals wear a rosary does not make it wrong to wear one.  If you were a gang member facing risky situations, or for that matter, if you were a middle schooler facing government/Positivist indoctrination, you might want to wear a rosary, too!

Here's the legal error: the effect of the prohibition is guilt by association: if you wear a rosary, you must be a gang member.  But wearing a rosary is not a crime.  Authorities cannot lawfully arrest even a gang member for wearing a rosary.  Of course, dress codes at government institutions can go further than legal minimums, but only until they bump into the Constitution.  A government-run school's dress code prohibiting the wearing of rosaries violates two clauses of the First Amendment:

Congress shall make no Law respecting an Establishment of Religion, or prohibiting the free Exercise thereof; or abridging the Freedom of Speech...

Wearing a rosary is both a free exercise of religion and a form of speech.  Granted, the message of that silent speech might be I am a gang member.  But it might also be, I am a Catholic.  If I am dying, call a priest, or Fly ye powers of darkness, I belong to the Queen of Angels!  The District recognizes only the problem.  It's like ruling, Some terrorists ride in airplanes.  Therefore, no one shall ride in airplanes.  It's for your own safety.  Riding in airplanes is not of itself wrong or evil; neither is wearing a rosary.

The subjectivity and the non sequiturs have to do with the wording of the dress code itself.

Here's the subjectivity: The dress code as written says The wearing of rosaries as jewelry ... is prohibited.  But who is to determine whether the rosary is being worn as jewelry, or as a matter of religious devotion, or for some other reason?  The only one who knows for sure is the person wearing it.  In order for its prohibition to be binding, the District would have to prove that the rosary was being worn as jewelry.  That's difficult to prove.

Consider for example an official at a track meet timing runners with a stopwatch.  He wants to keep it handy, and he doesn't want to lose it, so he attaches a strap to it, and wears it around his neck.  At that point, does the stopwatch cease being a stopwatch, and become jewelry?  Of course not.  So let's say some students think it looks cool to walk around campus wearing stopwatches around their necks.  In that case you might say the stopwatch is being worn as jewelry.  Even so, it is still a stopwatch.  How does an outside observer objectively determine whether or not the stopwatch is being worn as jewelry?  Maybe the student wearing a stopwatch is a physics major on his way to a physics lab, where he will time the descent of falling objects, and use a formula to calculate the height from which they fell.  And you thought he was wearing it as jewelry.  My point is that the casual observer can make a subjective judgment only.

Similarly, some people might wear rosaries around their necks, just because they don't want to lose them, or just to keep them handy.   But even if rosaries are worn as jewelry, they are still first and foremost rosaries; wearing a rosary as jewelry doesn't cause it to cease being a set of prayer beads.  It is therefore difficult to prove when or if the secondary use as jewelry has somehow become primary.  Exactly at what point does that occur, or how does an outside observer (such as a Principal) ascertain objectively if or when the rosary is being worn as jewelry?  There is really no objective way to tell; the prohibition is subjective.

Here's the first non sequitur: The prohibition cites as its reason for existence reports of gang members wearing rosaries as a gang symbol or a sign of gang affiliation.  From that a prohibition might logically follow that rosaries cannot be worn as a gang symbol, or as a sign of gang affiliation.  It does not follow that rosaries should not be worn as jewelry, or out of religious devotion; the reason for the prohibition's existence is not that wearing jewelry is wrong, or that religious devotion is wrong, but that wearing symbols of gang affiliation is wrong.  In failing to specify that the rosary cannot be worn as a gang symbol, but specifying instead only that it cannot be worn as jewelry, the prohibition does not follow from the stated reason for its existence.

Here's the second non-sequitur: From the mere fact that a gang member wears a rosary, it does not follow that he's wearing it as jewelry.  The prohibition as written actually allows rosary-wearing gang members an out.  All they have to say is, I don't wear it as jewelry.  I wear it as a symbol of membership in my gang, and the District (on checking its prohibition) would have to let the gang member keep wearing it!

Here's the obduracy: there are several similar cases in which other School Districts used their dress codes to ban rosary-wearing.  However, when the School Districts were accused of violating the First Amendment, and taken to Federal court, or if such legal action was threatened, the School Districts backed down and rescinded that part of the dress code.

For instance, the Schenectady City School District (NY) permanently suspended student Raymond Hosier for wearing a rosary.  Hosier's parents sought legal assistance, and a suit was filed in Federal District Court.  A Federal Judge issued restraining orders against the School District, after which (according to Bob Unruh at World Net Daily) the District eventually dropped the rosary-wearing prohibition from its dress code, but continued to harrass the student nontheless. (Unruh)

The Administration of School District 11's Horace Mann Middle School in Colorado told students this:

Students, we need to remind everyone that here at Mann, we respect all religious beliefs. Some members of the Catholic faith are offended by rosaries being worn around the neck like fashion accessories. If you wish to wear a rosary around your neck, it must, out of respect for others, be worn underneath your shirt. Failure to honor this request will be treated as a dress code violation. (www.koaa.com)

A student objected to the prohibition, however, and upon threat of a Federal lawsuit, the District dropped the prohibition.

In Texas, middle school student Jonae Devlin was suspended for wearing a rosary.  The Daily Mail quoted her mother: I'm angry because of the way they're treating students. (The Daily Mail)

It is apparent that School Districts are simply not on firm legal ground in these prohibitions.  Yet the Fremont School District obdurately pursues another one.

In its defense, the Fremont School District (according to ketv.com) portrays itself as observant of free expression: The District has no problem with students wearing jewelry or clothing to express their faith, but rosaries are an exception.  Sorry, the First Amendment makes no such exception.  The First Amendment does not say:

Congress shall make no law prohibiting the free exercise of religion, with the exception of wearing rosaries.

The District has a problem with students wearing rosaries, but not with students wearing any other religious symbols or clothing.  Also, in the above statement, there is a subtle but significant change of wording.  In the actual dress code, the rosary is called a rosary worn as jewelry; the dress code recognizes the rosary as a rosary.  But here, the District calls the rosary jewelry.  Inasmuch as the District uses these terms interchangeably, they betray their ignorance and carelessness concerning the rosary.

[Crucifixion of Christ]

The District's prohibition violates the First Amendment in way that singles out the Catholic Faith and rosary-wearers for discrimination.  At the same time, it technically does not prohibit gang members from wearing rosaries as gang symbols.

As for myself, I wonder if it is not enough for Church-State separation fanatics to stop at the removal of Christian symbols from publically-held properties.  I wonder if they want to prohibit us from displaying Christian symbols on our own persons as well.  I wonder if they are targeting kids first, because kids have fewer options and fewer defenses than adults.
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