A Stitch in Haste

To review (and, with the California gay marriage decision, to preview): The Internal Review Code requires all tax-exempt institutions to abstain from endorsing candidates for office as a condition of their preferential status. The restriction does not apply only to churches and does not apply to issue advocacy generally. Only endorsing particular candidates for particular offices is proscribed.

So how is this anything other than a disingenuous stunt aimed at the misinformed?

The Alliance Defense Fund announced a new initiative Friday that will challenge the tactics of groups that use the Internal Revenue Service to intimidate churches and pastors into silence on important issues of the day.

"Pastors have a right to speak about biblical values from the pulpit without fear of punishment. No one should be able to use the government to intimidate pastors into giving up their constitutional rights," said ADF Senior Legal Counsel Erik Stanley. "The government can't demand that a church give up its right to tax-exempt status simply because the pastor exercises his First Amendment rights in the pulpit. Groups like Americans United intentionally trigger IRS investigations that will silence churches through fear, intimidation, and disinformation."

The new initiative will equip, protect, and defend pastors who wish to exercise their First Amendment right to openly discuss the positions of political candidates and other moral and social issues from the pulpit. Participating pastors across the country will deliver a sermon along these lines in their own churches Sept. 28.

Read that again: "The government can't demand that a church give up its right to tax-exempt status simply because the pastor exercises his First Amendment rights in the pulpit."

To use the theocrats' favorite jurisprudential stunt: Where in the Constitution does it say anything about a "right to tax-exempt status"?

"The First Amendment" is not an answer. The tax-exemption in no way unfavorably* singles out churches relative to other civic institutions. Any assertion to the contrary is an un-Christian lie. Nor does it force any such institution, religious or otherwise, to do anything or refrain from anything. Any assertion to the contrary is an un-Christian lie. Any church or cleric is free, at any time, to say anything they want about any candidate they want. All they have to do is give up their tax-exempt status (which, recall, Congress could simply abolish any time it wished). Any assertion to the contrary is an un-Christian lie.

The theocrats (whose Bibles seem to have been miraculously redacted of that pesky "render unto Caesar" passage) appear perfectly willing to completely misrepresent the First Amendment, the Internal Revenue Code, the case law**, and the nature of their record of flagrantly illegal (and un-Christian) abuse of the tax-exempt status that allows them to suck so shamelessly at the taxpayer teat.

Some have suggested that the true purpose of this stunt is to generate a test case in the courts. Yeah right, good luck with that. There is simply nothing to test — because, again, there is absolutely no theory of constitutional interpretation, by anyone of any political orientation, that would dare suggest that there is a First Amendment "right to a tax break." It is beyond absurd.

More thoughts at Americans United, Religion Clause, Wall of Separation.

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*Indeed, some elements of the tax code actually treat churches more favorably than other civic institutions:

Although most organizations seeking tax-exempt status are required to apply to the Internal Revenue Service ("IRS" or "Service") for an advance determination that they meet the requirements of section 501(c)(3), a church may simply hold itself out as tax exempt and receive the benefits of that status without applying for advance recognition from the IRS.
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The unique treatment churches receive in the Internal Revenue Code is further reflected in special restrictions on the IRS's ability to investigate the tax status of a church. The Church Audit Procedures Act ("CAPA") sets out the circumstances under which the IRS may initiate an investigation of a church and the procedures it is required to follow in such an investigation.
--Branch Ministries v. Rosotti, 40 F. Supp. 2d 15 (D.D.C. 1999)

**Especially Regan v. Taxation With Representation, 461 U.S. 540 (1983):

Congress has not infringed any First Amendment rights or regulated any First Amendment activity. Congress has simply chosen not to pay for ... lobbying. We again reject the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.

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.
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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.
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[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.)

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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.
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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.)

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*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.)

A quick addendum to my last post on Judge Posner's bizarre, sad -- and wrong -- opinion today in the "Be Happy, Not Gay" t-shirt case, Nuxoll v. Indian Prairie School District #204:

The plaintiff calls Justice Alito's concurrence the "controlling" opinion in Morse* because Justices Alito and Kennedy were part of a five-Justice majority, so that their votes were crucial to the decision. But they joined the majority opinion, not just the decision, and by doing so they made it a majority opinion and not merely, as the plaintiff believes (as does the Fifth Circuit), a plurality opinion.

Lawyers' quibbles. As I explained in the first Stitch in Haste Podcast, it doesn't really matter whether one calls Chief Justice Roberts' ruling in Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case) a "majority opinion" or a "plurality opinion." What matters is that Justice Alito made it unambiguously clear in his concurrence that Morse was not to be extended to any fact pattern other than purely apolitical speech advocating illegal drug use. Any extension of Morse to such fact patterns -- including "Be Happy, Not Gay" t-shirts -- is plain error.

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*Morse v. Frederick, 127 S. Ct. 2618 (2007)

The latest round in the "Be Happy, Not Gay" t-shirt wars —

"Be Happy, Not Gay" is only tepidly negative; "derogatory" or "demeaning" seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says "Be Happy, Not Gay" would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere.

"As one would expect"? Why should anyone ever expect a single "incident of harassment of homosexual students"? And I suppose the killing of Lawrence King was also "highly speculative" and "only tepidly negative."

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The framework that Judge Posner lays out for analyzing this case is actually quite reasonable:

Taking the case law as a whole we don't think a school is required to prove that unless the speech at issue is forbidden serious consequences will in fact ensue. That could rarely be proved.
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But what is "substantial disruption"? Must it amount to "disorder or disturbance"? Must classwork be disrupted and if so how severely? We know from Morse* that the Supreme Court will let a school ban speech — even speech outside the school premises — that encourages the use of illegal drugs, without the school's having to prove a causal relation between the speech and drug use. We know too that avoiding violence, if that is what "disorder or disturbance" connotes, is not a school's only substantial concern. Violence was not the issue in Morse, or in Fraser**, the lewd-speech case. In fact one of the concerns expressed by the Supreme Court in Morse was with the psychological effects of drugs. Imagine the psychological effects if the plaintiff wore a T-shirt on which was written "blacks have lower IQs than whites" or "a woman's place is in the home."

The whole point of the Day of Silence is that anti-gay bigotry often, perhaps usually, results not in "disorder or disturbance" but in intimidation. Intimidation that disrupts the school environment for them. Gay students insulted, teased, taunted or harassed (or worse) often suffer in silence.

From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school — symptoms therefore of substantial disruption — the school can forbid the speech. The rule challenged by the plaintiff appears to satisfy this test.

That should have been the end of the opinion and of the "Be Happy, Not Gay" t-shirt.

But alas, this is Richard Posner and these are gays who are being targeted, so of course there is going to be an "on the other hand" —

The expression "Be Happy, Not Gay" is a play on words, since "gay" used to be an approximate synonym for "happy" but now has been appropriated to designate homosexual orientation. One cannot even be certain that it is a "derogatory" comment; for "not gay" is a synonym for "straight," yet the school has told us that it would not object to a T-shirt that said "Be Happy, Be Straight." It wouldn't object because to advocate X is not necessarily to disparage Y. If you say "drink Pepsi" you may be showing your preference for Pepsi over Coke, but you are not necessarily deriding Coke. It would be odd to call "Be Happy, Drink Pepsi" a derogatory comment about Coke.

Bigoted antipathy toward gays is comparable to preferring Pepsi over Coke? Posner himself can't help but acknowledge the sheer idiocy of such an analogy and promptly abandons it. Still, two paragraphs later, we get the hopelessly-disconnected-from-reality "tepidly negative" passage at the top of this post.

The controlling case for this fact pattern is clearly Fraser, which — while crafted in the context of lewd and offensive speech — set a straightforward, robust test for curtailing student speech on school grounds:

In upholding the students' right to engage in a nondisruptive, passive expression of a political viewpoint in Tinker***, this Court was careful to note that the case did "not concern speech or action that intrudes upon the work of the schools or the rights of other students."

Posner, somehow, actually cites Fraser as a counterargument against the school banning the bigot-shirts: since "Be Happy, Not Gay" is not lewd speech, Fraser must not apply. How convenient.

The case is Nuxoll v. Indian Prairie School District #204, No. 08-1050 (7th Cir., April 23, 2008) (PDF - 20 pages). More thoughts at Decision of the Day, Good As You.

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The Day of Silence, incidentally, is tomorrow.

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*Morse v. Frederick, 127 S. Ct. 2618 (2007)
**Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)
***Tinker v. Des Moines School Dist., 393 U.S. 503 (1969)

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.
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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).

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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.

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*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."

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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."

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

It makes perfect sense to two groups of people — professional journalists* and bloodthirsty dictators:

At around 2 p.m. yesterday, a Zimbabwean police unit raided the York Lodge, a Harare hotel being used by several foreign reporters covering the elections. Five journalists were arrested. Three of them were later released, but two are still being held at Harare police headquarters. One of them is New York Times correspondent Barry Bearak.

Their lawyer, Beatrice Mtetwa, said they would be charged ... with working without accreditation in violation of a 2002 press law known as the Access to Information and Protection of Privacy Act, under which journalists can be sentenced to up to two years in prison for working without a permit from Media and Information Commission (MIC).

Look on the bright side: Zimbabwe's barbarian censorship laws (two years in jail) are better than China's barbarian censorship laws (3.5 years).

(*One example here.)

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Meanwhile:

The inner circle of President Robert G. Mugabe of Zimbabwe met Friday to decide how to handle the outcome of elections that the opposition contends the president lost.

The options that confront the senior leadership of the ruling party include having the president step down, holding a runoff vote later this month or prolonging their control over the country, regardless of the outcome national elections last Saturday.
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Before the election, Mr. Mugabe repeatedly said he would not allow the opposition to take power, and since then his aides have said that he "is going to fight to the last."

The first presidential inauguration I remember watching was Reagan's in 1981:

The orderly transfer of authority as called for in the Constitution routinely takes place as it has for almost two centuries and few of us stop to think how unique we really are. In the eyes of many in the world, this every-4-year ceremony we accept as normal is nothing less than a miracle.

Mr. President, I want our fellow citizens to know how much you did to carry on this tradition. By your gracious cooperation in the transition process, you have shown a watching world that we are a united people pledged to maintaining a political system which guarantees individual liberty to a greater degree than any other, and I thank you and your people for all your help in maintaining the continuity which is the bulwark of our Republic.

Translation: "Carter, you really sucked. In fact, you sucked so bad that the nicest thing I can say about you is that you at least didn't try to stage a coup when you lost so pathetically. Thanks for that — and don't let the door hit you on the way out." I remember thinking, in my 14-year-old way, "This guy's supposedly a great orator? For saying stuff like that?"

In retrospect, however, it really is the simplest things — like "we can throw the bums out" and "you don't need a license to write" — that make the United States so obviously superior to so much of the rest of the world. And here I am today, not 14 but 41, blogospherically screaming from the rooftop essentially the same simple message, because it so desperately needs to be screamed:

We are a great nation for a reason. To the extent we forget the reason, we cease to be great.

Just a quick pass-long so Tony doesn't get upset with me:

A federal magistrate has overturned Virginia's decades-old ban on alcohol-related advertising in college newspapers, saying that the law violates the student publications' constitutional right to free speech.

U.S. Magistrate Judge M. Hannah Lauck sided with the student newspapers at the University of Virginia and Virginia Tech, which said the restrictions on alcohol references -- including phrases such as "happy hour" -- in print and online media hampered their ability to make money because they've had to turn down potential advertisers.

My long-standing view is unchanged: Truthful commercial advertising should enjoy full First Amendment protection on a par with political speech. The fact that these are college media outlets is utterly irrelevant.

Also irrelevant is the notion that bars or breweries have no "need" to advertise (e.g., via college publications or websites). Such arrogant micromanaging conveniently blanks out the fact that there are students (or graduate students or employees or whoever) who are over 21, not to mention the lack of any evidence whatsoever to suggest that advertising a happy hour "worsens" alcohol abuse, intoxication-catalyzed crime or injury, or any other purported "social harm." (And even if it did, so what? The First Amendment ought not yield so impotently to dubious alcohol-related "externalities" any more than it ought yield to dubious pornography-related "externalities.")

The case is Educational Media Company v. Swecker, No. 3:06CV396 (E.D. Va., March 31, 2008) (PDF - 36 pages)

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.)

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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.)

The Fourth Amendment has become a lost highway:

After verifying the tire was not in fact defective, the officer detained the driver, because among other things, the driver had a religious statue on his dashboard. The officer stated that in his experience and opinion, religious symbols are used to dispel suspicion of wrongdoing and are usually indicative of drug activity.

So now having a plastic dashboard Jesus qualifies as "fits the profile"?

Fortunately, the defendant had not Jesus but an "activist" judge metaphorically riding alongside him:

The Court finds that religious symbols cannot be used to generate reasonable suspicion of drug dealing or criminality. To do so, violates religious rights secured by the First Amendment and consequently, the Fourth Amendment. After removing the impermissible element of the religious symbol from the officer's reasonable suspicion calculation, the Court finds the remaining factors do not rise to the level of warranting extending the detention.

Need another gratuitous religious reference? Try "fruit of the poisonous tree" --

Because reasonable suspicion did not exist to extend the stop, once the officer realized a violation had not been committed, the purpose of the stop was fulfilled, and anything thereafter controverted Defendant's Fourth Amendment rights. Therefore, the Court grants Defendant's Motion to Suppress.

I'm reminded of this infamous list of self-contradicting "drug courier" descriptors used to justify airport detentions:

--Arrive late at night?

--Arrive early in the morning?

--One of first to deplane?

--One of last to deplane?

--Deplane in the middle?

--Use a one-way ticket?

--Use a round-trip ticket?

--Carry brand-new luggage?

--Carry a small gym bag?

--Travel alone?

--Travel with a companion?

--Act too nervous?

--Act too calm?

--Wear expensive clothing and gold jewelry?

--Wear black corduroys, white pullover shirt, loafers without socks?

--Wear dark slacks, work shirt, and hat?

--Wear brown leather aviator jacket, gold chain, hair down to shoulders?

--Wear loose-fitting sweatshirt and denim jacket?

--Walk rapidly through airport?

--Walk aimlessly through airport?

--Fly in to Washington National Airport on the LaGuardia Shuttle?

--Have a white handkerchief in your hand?

Eventually some intrepid law school student will compile a similar list of suspicious indicia used for automobile stops, complete with "had a plastic dashboard Jesus" and "had no plastic dashboard Jesus."

The case is United States v. Magana, 2008 U.S. Dist. LEXIS 24859 (W.D. Tex. March 13, 2008).

In a follow-up piece to the horrific student-on-student violence in Oxnard, California, that left a gay 15-year old dead at the hands of a fellow student whom he had hoped to ask to be his valentine, a professional bigot tries to whitewash exactly how and why such nightmares occur:

"The vast majority of parents believe it's their role and their responsibility to teach their kids about sexuality," said Bill Maier, vice president and resident psychologist for Focus on the Family, a conservative Christian organization. "The way you handle the problem is that you crack down on any sort of bullying or aggression on any child. You don't single out sexual orientation as this somehow special status."

Actually, it would a huge leap of anti-bigotry progress if schools (not to mention, e.g., the Boy Scouts) would cease to "single out" homosexuality as "this somehow special status." That's basically the whole point.

The latest "if you could only hear yourself talking" counterexample:

The American Civil Liberties Union of New Jersey in a letter sent today called on the Newark Public Schools to rescind last week's decision to censor hundreds of East Side High School yearbooks that included a photo of a male student kissing his boyfriend.
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At the direction of Newark Public Schools Superintendent Marion Bolden, school personnel used markers to block out the image of student Andre Jackson and his boyfriend, while allowing photos of heterosexual students kissing to remain. The photo was on a tribute page paid for by Jackson; tribute pages make up about 20 percent of the yearbook, and several others showed heterosexual couples kissing.
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"Treating same-sex couples differently from heterosexual couples not only disregards the fundamental guarantees of the Constitution and the laws of the State of New Jersey but also sends a dangerous message to the student body," Barocas said in the letter. "The message that LGBT students are unacceptable and undeserving serves to justify peer harassment, one of the most serious concerns schools face today."

Focus on the Family and the ACLU actually agree on a major issue -- that gay students shouldn't be "singled out"?

If it sounds too good to be true, it probably is.

A Stitch in Haste recommends the following report from the Congressional Research Service:

The Law of Church and State:
General Principles and Current Interpretations
From the summary:

The First Amendment of the U.S. Constitution prohibits the government from establishing a religion and guarantees citizens the right to freely exercise their religion. The U.S. Supreme Court has clarified the scope of these broad guarantees. This report provides an overview of the governing principles of the law of church and state. It explains the legal requirements for challenges under the Establishment Clause and Free Exercise Clause and the standards used to evaluate such challenges.

The six-page report includes, inter alia, a review of the standing requirement, the "excessive entanglement" test of Lemon v. Kurtzman*, prayer in public schools, Decalogue displays on public property (cf., my recent post), and the statutory provisions of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act. An excellent primer for non-lawyers.

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*403 U.S. 602 (1971)

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Previous CRS Recommendations:
Constitutional Limits on Hate Crime Legislation
Same-Sex Marriage — Legal Issues
Saudi Arabia
The National Debt
Restricting Video Game Sales to Minors
Warrantless Wiretapping
Foreign Holdings of Public Debt
China's Internet Censorship
Summary of Rumsfeld v. FAIR