A Stitch in Haste

Fascinating case study in theocratic majoritarianism versus secular libertarianism:

In a 7-1 majority vote Monday night the Charles Town [West Virginia] City Council decided to institute a moment of silent prayer, thus abolishing the decades-long tradition of reciting the Christian-specific Lord's prayer before the beginning of each meeting.
...
Charles Town Mayor Peggy Smith, who did not vote on the issue, said she was disappointed in the council's decision but understood why it was made. "I understand why they did what they did after listening to legal advice. We cannot place the citizens in jeopardy with a lawsuit. So I do understand their vote but it doesn't make me happy about it," Smith said.
...
[Geraldine] Willingham, who cast the dissenting vote [and] described Charles Town as a "Christian town" at the council's last meeting, was not pleased by the council's decision to do away with the recitation of the Lord's prayer.

"I think it's a sad day for Charles Town where we cannot start our council meetings off with the Lord's prayer all because of one negative person. That's my comment," Willingham said after Monday's meeting.

Some hasty stitches:

--The "one negative person" was a Jew, not an atheist. Of course, to most hillbilly Christians like Willingham, there's little point in distinguishing between Jews, atheists, agnostics, whatever -- they're all equally un-American and all equally devoid of First Amendment protection (not to mention equally hellbound). Stated differently, there are still people -- elected leaders -- who actually believe, in the Twenty-First Century, that there can be such a thing as a "Christian town" in what was once known as the "land of the free."

--Based on the media account, it appears that the theocrats couldn't even be bothered to engage in the wink-wink of calling their new invocation a "moment of silence" rather than a "silent prayer." The simple, uncomplicated First Amendment notion that maybe, just maybe, a city council chamber ought not be used as a church is simply incomprehensible to these "dedicated public servants."

--Speaking of which, note that these theocrats did not stop their flagrantly unconstitutional* practice out of any moral epiphany. They stopped the practice because their lawyers told them to. That's better than nothing, I suppose, but it's hardly praiseworthy.

(Via Religion Clause.)

---

Elsewhere:

Conservative Christian leaders who believe the word "evangelical" has lost its religious meaning plan to release a starkly self-critical document saying the movement has become too political and has diminished the Gospel through its approach to the culture wars.

The statement, called "An Evangelical Manifesto," condemns Christians on the right and left for using faith to express political views without regard to the truth of the Bible, according to a draft of the document obtained Friday by The Associated Press.
...
Richard Land, head of the public policy arm for the Southern Baptist Convention, said through a spokeswoman that he has not seen the document and was not asked to sign it.

James Dobson, the influential founder of Focus on the Family, a Christian group in Colorado Springs, Colorado, did not sign the document, said Gary Schneeberger, a Dobson spokesman.

This is similar to the observation that too many secular Muslims in the U.S. and Europe and not doing enough to "take back Islam" from extremists who spawn terrorism and violent intolerance in the name of a supposed "Religion of Peace."

To the extent that these non-political Evangelical leaders make noise against the radical anti-Christians in their midst -- especially Dobson (who, recall, is not a credentialed cleric in any church) -- I can only say, "praise be unto them."

(Via Wall of Separation.)

---

*Marsh v. Chambers, 463 U.S. 783 (1983) (Inapplicability of First Amendment to opening a legislative session with a prayer presupposes that "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.") Note that I of course consider Marsh wrongly decided in that all legislative prayer sessions ought to be deemed facially unconstitutional, and not just those that are both openly and notoriously sectarian and unambiguously hostile to non-Christians -- as the Lord's Prayer unarguably is.)

I recently wrote the following regarding a Decalogue lawsuit:

So the reason stand-alone Decalogues on government property are not necessarily problematic under the First Amendment is because the Ten Commandments are no big deal? There are "many plausible secular reasons" to brandish a Decalogue in public? Decalogues can, indeed should, be viewed merely as the civic organization equivalent of a greeting card?

If I were a theocrat -- indeed if I were simply a non-theocratic Jew or Christian -- I would not be pleased to see a Decalogue disrespected in this manner.

Well, what's good for the Old Testament is good for the New.

Plaintiffs [i.e., the ACLU] filed suit after Defendants displayed the icon of Jesus Christ in the foyer of the City Court of Slidell [Louisiana]. Plaintiffs contend that Defendants' display served the purpose of advancing, promoting or endorsing Christianity, in violation of the Establishment Clause of the First Amendment.
...
Defendants changed the display prior to and in anticipation of the hearing on the Motion for Preliminary Injunction. The Court noted that the modified display containing various historical lawgivers under the caption, "To Know Peace, Obey These Laws," was not in violation of the Constitution; however, the initial arrangement of solely Jesus Christ violated the Establishment Clause.

I first noted this disgraceful church-and-state violation back in July 2007.

This latest smackdown of icon-based theocracy is a straightforward application of what I have dubbed the McCreary County - Van Orden Decalogue bifurcation: Be too obnoxiously overt in your rabid theocratic mania (i.e. by having only a Decalogue or only a portrait of Jesus on public property) and you lose your First Amendment lawsuit because you've pulled a McCreary County.*

But be clever and cunning (i.e., lie) about your intentions, and dilute the Ten Commandments to "just another set of historical laws" -- or, as here, demote Jesus to "just another lawgiver" (along with, e.g., "Moses, Charlemagne and Napoleon") -- and you can joyously traipse your way to the Van Orden** side of the line. No "excessive entanglement," no "religious intent," no problem.

Of course, by evangelical Christian standards, you've blasphemed by doing so (and violated a few other Commandments along the way). But what's a little ends-means Machiavellianism among friends (or especially among enemies) when it's done in God's name?

Just as I don't see how it furthers American "Jesusland" monotheism to assert that the Ten Commandments is not above the Mayflower Compact or the Code of Hammurabi, I'm also not quite sure how it furthers evangelical Christianity to equate Jesus with Napoleon. But if it gets their Lord and Savior™ into the county courthouse, then gosh darn it that's what they're going to do. Amen.

The case is ACLU of Louisiana v. Slidell, No. 07-3574 (E.D. La., April 16, 2008) (PDF - 16 pages).

---

Just to be clear, this particular litigation was merely about whether the theocrat defendants should pay the ACLU attorney fees and nominal damages. Both sides stipulated that the theocrats violated the First Amendment with the "Jesus only" display but then fixed their error (i.e., with the "fifteen lawgivers" display) before the substantive lawsuit could be heard. The court sided with the ACLU based mainly on Fifth Circuit precedent.

---

*McCreary County v. ACLU, 545 U.S. 844 (2005)
**Van Orden v. Perry, 545 U.S. 677 (2005)

....there is an equal and opposite bad Scalia sentence:

Thomas Jefferson and the other founding fathers never intended to eliminate religion from government.

That remark made, incidentally, in his speech accepting the "Thomas Jefferson Foundation Medal in Law." Go figure.

The truth shall set you free:

I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline or exercises. ... I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, its doctrines, nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them.

Lots more here (PDF - 6 pages).

Another quick Scalia v. Jefferson:

Scalia: "With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists." (McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) (Scalia, J., dissenting).

Jefferson: "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg."

---

If you need a tiebreaker, Sally Kern is always available:

Kern: "Matter of fact, studies show, that no society that has totally embraced homosexuality has lasted more than, you know, a few decades."

Jefferson: "History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance, of which their civil as well as religious leaders will always avail themselves for their own purposes."

---

The "good Scalia sentence," recall, was here..

Two lawsuits handed down from the mountaintop —

ITEM: A Kentucky theocrat trying to sneak a Decalogue into a county courthouse under the "comprehensive historical display" exception of McCreary County v. ACLU, 545 U.S. 844 (2005), was too clever for his own good:

Reverend Shartzer's public comments demonstrate that he had a clear religious purpose for requesting to erect the Foundations Display. The September 18, 2001, minutes of the Grayson County Fiscal Court reflect that "Reverend Chester Shartzer addressed the Court concerning his desire for the County to place the Ten Commandments in the County buildings." Reverend Shartzer indicated that "there were several Counties in the State who ha[ve] them in their Courthouses." The minutes further reveal that Reverend Shartzer "explained that some Counties ha[ve] them hanging in a group of other historical documents. He said he thought the Civil Liberties would look more favorable toward it if they were hanging in a grouping with the other historical documents."

The trial court had little choice but to acknowledge the open and notorious disingenuousness of the theocrat's wink-wink "sure it's secular" pretense, and subsequently struck down the display — which most likely would otherwise have withstood scrutiny under the McCreary - Van Orden bifurcation. An appeal is reportedly planned.

Meanwhile, the truly "Christian" approach — not trying to force your faith on others in the first place — never came up. Go figure. (ACLU of Kentucky v. Grayson County, NO. 4:01CV-202, March 27, 2008) (PDF - 23 pages). (Via Religion Clause.)

---

ITEM: The Supreme Court has granted certiorari in a case concerning an unusual Decalogue fact pattern in Utah:

In this case, a religious group that operates from a pyramid outside Salt Lake City wants to place what it calls the Seven Aphorisms in a city park, contending that the words are lesser-known instructions that Moses received from God.

Pleasant Grove City, Utah, said no. But a federal appellate court has agreed with the religious group Summum — founded in 1975 by its leader, Summum "Corky" Ra — that if a city accepts the Ten Commandments, it opens itself to requests from others and may not discriminate.

From a reality-based perch, I'd love to be sympathetic to the politicians and bureaucrats of Pleasant Grove City. (That would pretty much be a first for me as far as Utah is concerned.) It simply cannot be the case that anyone and everyone who wants to erect a permanent monument in a public park must be allowed to do so (anyone want to chip in for a Nat Taggart statue?).

But it also simply cannot be the case that the aforementioned politicians and bureaucrats should have plenary authority to decide — based on whim, caprice and political expediency (both licit and illicit) — which monuments will and will not be approved. If no reasonable and equitable standard can be crafted, then the only viable standard is no monuments at all — or at least no religious monuments. Which would of course be perfectly reasonable and equitable to absolutely everyone — except the theocrats who created this mess in the first place. Go figure. (Pleasant Grove City v. Summum, No. 07-665.)

To review: One of two arguments against non-deferential standards of judicial review (a/k/a "activist judges") is that a legislature is better equipped to research policy questions. Congress — or a state legislature or town council or school board — can hold committee hearings, conduct field research, prepare detailed reports and debate legislation to a far greater extent than a judge or panel of judges ever could.

(The second argument — that elected legislators better reflect the "will of the majority" — is irrelevant to this post. For a sample of my thoughts on that premise, see here.)

The problem, quite frankly, with "legislators can research issues better than judges" is that "can" is not synonymous with "do." To assume that politicians actually do their homework, or base their votes on such research, naively assumes facts not in evidence.

Indeed, "homework" (i.e., public education) is a great example:

Most legislators thought it was a terrific idea last fall when they required students in Illinois schools to have a moment of silence to pray or reflect, but House lawmakers now think they could have used a few more moments for reflection themselves before they put the law in place.

The House voted Tuesday to reverse the requirement after getting an earful of complaints from school administrators and teacher unions who found the requirement poorly thought out and unenforceable.
...
Chicago Public Schools spokesman Mike Vaughn said the district supports [the proposed reversal]. "We don't consider a moment of silence a good use of classroom time and don't plan on implementing one in our district," he said.

A bill that was: (a) in no way urgent; (b) micromanaging a major governmental activity (public education), and (c) constitutionally suspect, was passed (and also veto-overridden) without any "deference-deserving" legislator taking the time to actually ask teachers and educrats what they thought or how they would respond to such a bill. (Or, alternatively, these activist legislators simply didn't care about what teachers and educrats thought. Was this a pro-education bill or a pro-theocracy bill disguised as a pro-education bill?)

Such processes and outcomes are, of course, the rule and not the exception. This legislative embarrassment is merely a compact, uncomplicated example. But rest assured: it happens all the time, in every legislature, on almost every vote.

So remind me again why judges should defer to it?

(Via Religion Clause.)

I was trying to find William F. Buckley, Jr.'s infantile, insulting and insolently inaccurate 1982 column on Ayn Rand's death, when I instead stumbled upon this:

There's nobody more interesting than Ayn Rand, the founder of the Objectivist Order. And she was pretty assertive in the late '50s. She figured that the conservatism that didn't embrace her point of view 100 percent was going to sort of die of malnutrition.

That was William F. Buckley, Jr., in 2003.

Isn't it interesting that "the conservatism that didn't embrace her point of view 100 percent" (i.e., the conservatism of George W. Bush, Karl Rove, Bill Kristol, etc.) is indeed now dying, not of malnutrition but rather of gluttony — the gluttony of political megalomania, moral self-righteousness, irrational mysticism and primitive bigotry, all glued together with the stale kiddie paste of mob rule and adorned with the glitter-on-glue of petty hypocrisy?

Movements come and go. Philosophies endure. Buckley founded a movement. Rand founded a philosophy.

Now that both are dead, the real test of whose ideas will win out over whose can begin in earnest.

---

Incidentally, the Buckley column I was looking for is — "Ayn Rand, R.I.P.," dated April 2, 1982 (PDF - 3 pages).

Can someone explain to me why apologists for religion so easily get stuck on stupid in this manner?

The inevitable, even clichéd, response on the part of theists to this litany of woes is to ask: what about Hitler and Stalin? Yes, the question resorts to the hackneyed rhetorical ploy of et tu quoque (Latin for "So's your old man"). But at least the question's inevitability forces the atheist to show his hand. Thus Dawkins lamely avers that Hitler did believe in God (of sorts) and, hey, Stalin attended an Orthodox seminary in his youth! If that retort seems a tad desperate, England's most pious unbeliever concludes with this wan distinction: "Stalin was an atheist and Hitler probably wasn't, but even if he was, the bottom line of the Stalin/Hitler debating point is very simple. Individual atheists may do evil things but they don't do evil things in the name of atheism." So it's not atheism that's the problem, only atheists!

Leave it to a Jesuit priest — no blood on their hands, right? — to be so good at obfuscation.

Here's the redux, without the snarky Jesuit straw man prestidigitation about Dawkins:

Atheist: It's reasonable to conclude that perhaps 90% of all killing and 99% of all cruelty in human history has been inflicted in the name of, or legitimized by, organized religion.

Theist: But some of the other 10% was done by Hitler and Stalin, who were atheists!

Atheist: So almost 100% of all killing and suffering has been done either in the name of organized religion, legitimized by organized religion, or replicated by those who merely sought to replace organized religion with another form of anti-intellectual, yield-to-authority, reason-denying worship — of the Volk, the State, or some other anti-individualist, anti-mind, power-greater-than-you construct. How exactly does that help the radically incredulous theist claim that blind faith — in whatever — has been a net positive for humanity?

Theist: But, but — Hitler!

Hitler was a male. Hitler was an Austrian. Hitler was a vegetarian. Hitler was a Taurus. Hitler was left-handed. Hitler was an atheist. So what? What does any of that have to do with the millenia of unspeakable misery perpetrated upon humanity by organized religion?