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Queens Chronicle

Queens Boro President Katz ends annual Ash Wednesday tradition

Law experts say she’s within her constitutional right; clergy upset

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Posted: Thursday, March 13, 2014 10:30 am | Updated: 11:33 am, Thu Mar 20, 2014.

Borough President Melinda Katz’s rescinding of the giving of ashes on Ash Wednesday at Borough Hall for Catholic employees last week has sparked a constitutional debate among both clergy and educators over why she ended the practice.

Former Borough President Helen Marshall allowed the Rev. Michael Ross of the Corrections Department to distribute ashes in Borough Hall.

But in a statement, Katz’s office cited the need to abide by the separation of church and state, an expression used by Thomas Jefferson to help define the Establishment Clause of the First Amendment of the U.S. Constitution, as the reason why she did away with the religious rite being practiced at Borough Hall.

“The borough president believes deeply in celebrating religious freedom and diversity,” the statement read. “However, there is a fundamental precept of our government that, to protect religious freedom, we must have a separation of church and state.

“It is for this reason alone that the borough president does not think it is appropriate to allow a religious rite to be practiced in a government office.”

In addition to guaranteeing the freedom of the press, speech and assembly, the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” with the first segment known as the Establishment Clause and the second segment known as the Free Exercise Clause.

An 1878 Supreme Court case created the precedent for the Establishment Clause being interpreted through the lens of the separation of church and state and the argument has been used in numerous court cases since the landmark ruling.

Because legal precedent is on her side, Katz’s abolishment of the practice on government property isn’t in any way illegal or unconstitutional, according to Marc DeGirolami, a professor specializing in constitutional law and its relationship with religion at St. John’s University School of Law in Jamaica.

“You would have to say she was specifically targeting Christianity,” DeGirolami said. “If she were prohibiting people from coming into Borough Hall with ashes on their heads, then there would be a case.”

However, DeGirolami says the reasoning behind Katz’s decision to end the religious practice is a clear misinterpretation of the First Amendment.

“There is nothing wrong about a chaplain administering ashes in the middle of a public building to people who would like them administered,” he said. “There’s nothing in the Establishment Clause to say that such a practice is unconstitutional.”

Fellow St. John’s law professor John Barrett differs slightly with DeGirolami, saying that previous Supreme Court decisions have upheld non endorsement cases similar to Katz’s decision, but the distribution of ashes as being a clear violation of the Establishment Clause isn’t obvious.

“There’s a fair amount of discretion and judgment when it comes to situations like these,” Barrett said. “It’s sensitive, probably oversensitive. But I don’t see it as a big deal.”

Ending the practice is an issue for the Rev. Steven Aguggia of St. Margaret’s Church in Middle Village.

He agreed with DeGirolami, saying the Ash Wednesday rite at Borough Hall was not an endorsement of religion that the Constitution would deem illegal.

“There’s a distinction between the government endorsing a particular religion and allowing people to practice their faith,” Aguggia said. “To make things a little easier for people by having a priest go to their place of employment to distribute ashes is not an endorsement.

“I’m against what she’s done and I don’t understand how it harms the separation of church and state,” he continued. “I don’t see how it harms anything.”

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