As a teacher in the Talented and Gifted Program, I have worked to develop a curriculum that deals with race relations and prejudice reduction. Through Constitutional Law, I have been able to expose students to the “growing pains” experienced by America as it tried to deal with its diverse groups of people. We have examined The Dred Scott Decision, Plessy v Ferguson, Korematsu v United States and other Supreme Court cases that dealt with racism.
Because our student population is very racially and ethnically diverse, I would like to take the unit a step further and investigate the role of culture in U.S. Law. I would like to present students with the challenge of deciding if present day immigrants have the right to bring with them their cultural practices, and if those practices should supersede U.S. Laws.
Contrary to the myth of America as “the great melting pot”, our increasingly pluralistic society places great demands on our present judicial system. We have not blended into a single culture, but we bear evidence of may intact cultural and religious practices that are quite different from, and in some cases, unacceptable to “mainstream” U.S.A.
Today many U.S. citizens born and raised in the United States find themselves trying to define U.S. culture. Although a pluralistic religious community existed in the Colonial Period, there was a general consensus that this would be a country founded on Christian beliefs. The protestant culture influenced the formation and execution of the laws. It was primary in the common or public schools, provided an agenda for social reform, and served as the basis for forming denominational colleges during that period. During the 1830’s, this Protestant domination became challenged, and that continuous challenging leaves us grappling with what we deem culturally acceptable or unacceptable.
In the 1830’s, approximately 600,000 catholics arrived in the United States. During the 1840’s, 1,700,000 more arrived while an additional 2,600,000 arrived in the 1850’s. By 1880, there were approximately 6,259,000 Catholics in the U.S. Nearly half of them were Irish, about 1/4 were from Germany, 1/6 from England, Wales and Scotland. The rest were mainly from eastern Europe and Italy.
The immigration of the Jewish population in large numbers began in the 1880’s. In the 1830’s, Jewish people made up less than one tenth of a percent of the American population. By the mid 1920’s, the number of Jews in America had jumped to 4 million. The American culture and legal system found itself faced with further changes to accommodate and incorporate the more diverse, Catholic, Protestant and Jewish Citizenship. With this coming together, America witnessed the emergence of a Judeo-Christian consensus.
As new immigrants with new faiths have come to our shores, we have found ourselves changing to further include our more recent citizens. In 1934, there was only one mosque and less than 20,000 Muslims in this country. In 1988, there were over 600 mosques or temples and more than 4 million Muslims in the U.S.
Although Hinduism is a family religion and most worship takes place in the home, it has been estimated that there were approximately 150,000 Hindus in the United States in 1940. In 1990, this number grew to about three quarters of a million. In 1909, there were approximately 3,000 Buddhists in America. In 1988, there were an estimated 600,000 Buddhists in the U.S.
U.S. culture and law continued to reflect the emergence of other “new religions” embraced by young Americans during the 1970’s. Among these religions are Transcendental Meditation, the Hare Krishna Movement, Zen Buddhism, and the Unification Church. (the Moonies) Perhaps the greatest influence and challenge to America and its laws was the growing number of Americans who did not have any religious practices and objected strongly to the Judeo-Christian assertion of right and wrong. In the late 1980’s, these new “secularists” made up approximately 11 percent of the U.S. population. Their views are seen to be “humanist” and they support what they feel are laws that are for the good of mankind, not laws based on a Judeo-Christian ethic.
While we are struggling to define our culture and devising and revising laws to meet continuing challenges from various groups within, we must make an attempt to show tolerance for the many cultural practices that have come into the U.S. via its most recent immigrants. In an attempt to foster greater justice and to show acceptance of varying immigrant customs and practices, some argue for a “Cultural Defense.” Because of their culture, many immigrants find themselves in conflict with the legal system in the U.S. This cultural defense asserts that many immigrants and ethnic Americans experience legal and social problems as a direct result of their “different” cultural practices.
Because many immigrants are faced with laws and practices so different from what they are accustomed to, many find themselves on the wrong side of the law. In my unit, I briefly explore cultural and/or religious practices from Cuba, Japan, Southeast Asia (Hmong), Hawaii, Cambodia, Vietnam and Africa that raise legal questions when practiced in the United States.
In an effort to better understand a culture, one must examine the influence of religion, written and unwritten laws. In my unit, I present traditional cultural and/or religious practices of several ethnic groups now living in the United States. This view into their practices and beliefs, should help one ascertain the need for a “cultural defense.” However unorthodox many of the practices may seem to mainstream America, many of these practices are alive and well within our country. Because of them, some recent immigrants may find themselves in direct conflict with the United States legal system.
In this unit, I also present conflicts that arise when religious cultures clash with U.S. Law. I present cases that deal with the religious cultures of the Amish, Catholics and Protestants. These cases, though centered around religion, address the issue of parental rights.
Through the use of this unit, students will participate in mock trials, simulations, town meetings and various role-playing activities. I will also use divergent art and writing activities, to allow students the opportunity to creatively express their knowledge of the subject matter.
The Hmong of Southeast Asia:
The Hmong of Southeast Asia, call themselves “The Free People.” They have maintained a simple life and cultural practices that have remained virtually intact for thousands of years. There are approximately 5 million Hmong living in southern China. Other Hmong live in Laos, Burma, Thailand, and Vietnam. Presently there are over 100,000 Hmong people living in the United States.
Most Hmong outside of the U.S. have chosen to live simple lives in the mountains. They have become known as warriors because of their unwillingness to bow to stronger powers. During the 19th century, they fled China to escape a harsh ruler. They opposed taxes imposed upon them by French rulers in Southeast Asia, and served as guerrilla fighters for the Allies in WWII. The Hmong practice several religions, Animism, Shamanism, Confucianism, Buddhism and Christianity.
The Animists believe that there is life after death. Although many Hmong believe that one will practice his/her religion in one’s life after death, they believe the purpose of their worship is to state their intention to live good lives to their loved ones who have already passed away.
Shamanism is part of Hmong Animism. A Shaman is believed to be one who possesses certain powers from heaven to cure sickness and to eliminate ghosts and other spirits.
Confucianism contains three major theories adhered to by the Hmong:
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(l) It is believed that humans are the center of nature and that heaven and earth were created for the benefit of human beings.
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(2) Humans are classified in three groups, and their importance is in this order, the group, the family, and the individual.
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(3) Human nature is divided into three categories; aggressive, restrained and passive.
Marriage:
In the Hmong culture, there are three ways one may acquire a wife; through pre-arranged marriage, eloping or capture. Marriage, in this culture, presents a special problem in the context of U.S. law because of age. Within the Hmong culture, the desired age of marriage for a girl, is between the ages of 14 and 18 years.
A young girl living within the U.S. may find that her parents have accepted a bride’s price for her marriage to an older man. The girl is expected to accept this arrangement, leave school and become a wife and mother. She would then become a part of her husband’s clan, and live in a multi-generational home inclusive of his parents and perhaps other siblings.
A couple may also become husband and wife by simply living together. Lastly, a young girl may become a bride by being captured by a suitor. If a man sees a girl that he would like to have as his wife, he may confront her and make his intentions known. The young girl, without her parents’ approval or knowledge, may accept his proposal of marriage. Although the female is usually underage by U.S. standards, the suitor then takes the young girl to his home where they begin to live together as husband and wife. She becomes a part of his family’s clan. They have 24-48 hours to contact her family notifying them of the marriage or “capture” of their daughter.
Cultural Conflict:
There are many cultural and religious practices that may be problematic for recent immigrants to the U.S. In California, two Cambodian refugees, both in their thirties were charged with cruelty to animals after killing a German Shepherd for food. The killing and eating of dog meat was a common practice in their country and they did not know that it was prohibited in the U.S. The judge dismissed all charges against them. He ruled that it was not illegal for them to kill the animal for food as long as the animal was not killed in an inhumane way. The judge supported his position by paralleling their behavior with the common occurrences in slaughterhouses.
A Vietnamese folk remedy for headaches, has been the impetus for the investigation of many Vietnamese parents. To rid one of a headache, the serrated edge of a coin is used to massage the shoulders and back. This practice leaves bruises that are quite visible.
A teacher, noticing bruises on a Vietnamese child, reported the family to social services. Because social workers are obligated to investigate any charges of child abuse, charges were made against the child’s family. When the prosecutor learned of the folk remedy used, the charges were dropped.
The Miami suburb of Hialeah was involved in a legal battle over the rights of a religious group to sacrifice animals as part of their worship. This ancient religion called Santeria, originated in Africa and is still practiced in Nigeria. This religion, requiring the sacrifice of chickens, pigeons, ducks, doves, turtles, sheep and goats, was brought to the U.S. in the 1960’s by Cuban refugees.
The church ministers argued that if the state of Florida allowed the killing of animals for sport and food, that it should not ban animal killing for religious purposes. The worshippers viewed this ban as a government infringement, because religious expression was basically the only unacceptable reason for killing animals. The ministers also argued that Santeria should become institutionalized like other faiths so those who practiced it, could become a part of the U.S. mainstream.
In the Samoan culture, there is a forgiveness ritual called an “ifonga”. A Samoan immigrant living in Hawaii was stabbed to death outside of his home by a fellow Samoan. The assailant, Tonny Williams, was placed in jail and charged with murder. William’s family responded to these events by performing an ancient ceremony called an ifonga.
During the ifonga, the family of the assailant, the Williams family, asked forgiveness of the family of the victim, the Foutuuas, by having two high priests place gifts of fine mats, food, handicrafts and money at their home. The Foutuuas accepted, and gave a gift to the Williams family. In accepting their gifts, the Foutuuas agreed that they would not testify in court. Without their testimony, Tonny Williams would receive a ten year prison sentence rather than a life sentence. As a result of this ceremony both families have a good relationship.
Although the ifonga restricted the judicial system, the families involved did not view it as a way of beating the legal system. While it is not uniformly accepted, courts in California and Hawaii are looking for ways to integrate the ifonga into the justice system.
Japan:
In Japan, the resolution of disputes are quite clear and can present problems for Japanese immigrants in the United States.
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1. First and foremost, the social unit or relationships are more important than individuals. Disputes show disharmony and should be avoided at all costs.
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2. Girl is the guide for all social behavior. Although it is unwritten, it shows the obligation of one person to another.
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3. One should possess “ninjo” or warm-heartedness when dealing with people. Carrying out one’s obligations and duties should never be seen as burdensome.
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4. When resolving a dispute, not matter how severe, one must always work to preserve the relationship. Having someone win and someone lose, would damage the relationship.
Several cases involving Japanese Americans show the dilemma of culture versus the law. In the Yamanaka Case, neighbors were asked to baby-sit a couple’s three year old son, Yasuyuki. The neighbors took the child with them to the beach where he drowned.
The Yamanakas sued their neighbor for negligence, and were awarded $24,100 in damages. After their victory in court, the Yamanakas received hundreds of telephone calls denouncing their behavior. Others in their culture were not only appalled by the fact that they accepted monetary compensation from their neighbor, but also for taking the neighbor to court at all. The family could not stand under the social pressure. In less than a month, they went back to court to return the money and to drop the case.
The case of Fumiko Kimura is perhaps one of the most distressing cases thus far. Mrs. Kimura, who lived in Los Angeles, received a phone call from a Japanese-American woman who claimed to have had a long term affair with Mrs. Kimura’s husband. The “other woman” wanted to end the relationship by telling Mrs. Kimura all about it.
The call was made on January 20. On January 29, Mrs. Kimura walked into the ocean carrying her two children, a six month old daughter and a four year old son. While trying to drown herself and the children, she was spotted by two teenagers who jumped in to rescue them. Mrs. Kimura lived, but both of her children died.
When arrested, Mrs. Kimura explained about the phone call and how her husband’s infidelity had brought shame upon the family. The shame was particularly placed on her, because in her culture she had failed as a wife. In the Japanese culture, an honorable way of ridding the family of such shame, is by committing a form of parent-child suicide called “oyako-shinjo”.
Because the Japanese culture views the children as extensions of the mother, the children also had to die. To allow the children to live; would have placed them in a terrible situation within their culture. The children would have been ostracized and the targets of constant harassment, contempt and ridicule. Mrs. Kimura faces the death penalty if she is convicted on the two counts of first-degree murder under California law.
Religion and Education:
One of the earliest challenges of religious rights of families versus state authority over children, came in 1925 in Pierce v. Society of Sisters. The Oregon Compulsory Education Act required parents to send their children, ages eight to sixteen, to public schools only. This authority of the state versus the right of parents to select a nonpublic school, whether military or religious, was litigated in this landmark case. The courts found in favor of the parents’ right to send their children to a religious school. The court saw this as the parents’ fundamental right to direct the upbringing of their children and to choose between public and nonpublic education. This choice was deemed a Fourteenth Amendment right.
In 1972, almost fifty years later, the power of the states was once again challenged in Wisconsin v. Yoder. Wisconsin law compels children to attend school until age sixteen. Yoder and other members of the Amish community refused to send their 14 and 15 year old children beyond the eighth grade. Yoder and others were found to be in violation of the law and were fined $5.00 each.
The parents saw this ruling and the compulsory school attendance law, as a violation of their First and Fourteenth Amendment rights. Yoder sincerely argued that he and the others risked not only censure from their community, but possibly the salvation of their children and themselves if the children continued to attend school. It was found that the compulsory education requirement interfered with the free exercise of their religious beliefs. The ruling was overturned, and Yoder became a decision that greatly affected the rights of parents regarding the education of their children.
In New York, many parents expressed a desire to have their children receive religious instruction during the school day. Although their children were in public schools, parents felt that religion should also be a part of their daily instruction. A New York statute allowing release time for public school students to attend religious classes held off school property, was challenged. An earlier case, Illinois ex rel McCollum v. Board of Education, was found to be unconstitutional. Religious classes were held in the schools, and funding came from the school district.
However, Zorach v. Clauson (1952) was held constitutional. The court found that there was no coercion to get students to attend these religious classes. The courts found that the statute did not prohibit the free exercise of religion, nor was it seen as a means of establishing religion. Unlike Illinois ex rel McCollum v. Board of Education, 1948, no public school facilities or funds were used for religious instruction. The religious community involved, financed everything, including the applications for participation.
