A Stitch in Haste
http://kipesquire.powerblogs.com/
A collection of real-world libertarian, individualist and laissez-faire rants on policy, culture and other current events by an average, everyday lawyer & investment banker and part-time pop scholar.en-us2008-06-28T11:06+00:00Supreme Court Chips Away at McCain-Feingold
http://kipesquire.powerblogs.com/posts/1214587200.shtml
"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name....Kip2008-06-27T17:06+00:00"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, and it is a dangerous business for Congress to use the election laws to influence the voters' choices."
--Davis v. Federal Election Commission
They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.
--Kurt Vonnegut, "Harrison Bergeron" (1961)
To review: The Supreme Court, in its schizophrenic campaign finance decision Buckley v. Valeo, 424 U.S. 1 (1976), held that it is constitutionally protected speech to spend money to get yourself elected to public office, but not to get someone else elected to that same public office. So, for example, Michael Bloomberg was able to spend $70 million to run for re-election as mayor of New York, but I was barred by law from donating 0.1% of that to his opponent's campaign.
This created a pesky problem for incumbent politicians: rich people might actually spend money to run against them. Unacceptable. So they enacted, in a patently self-serving maneuver, an exemption from the Bipartisan Campaign Reform Act (BCRA), a/k/a "McCain-Feingold." This exemption, generally called the "Millionaire's Amendment," allowed candidates to exceed McCain-Feingold's limits if their opponents (who, recall from Buckley, can always spend as much of their own money as they want) spent beyond a certain amount.
(My understanding, incidentally, is that the Millionaire's Amendment was forced upon John McCain as a take-it-or-leave-it ultimatum in order to secure enough votes to pass BCRA in the first place.)
Fast-forward to yesterday. The Supreme Court quite rightly struck down the Millionaire's Amendment as a violation of the First Amendment:
We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
...
While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. ... [A] candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits.
In other words, there is no functional difference between forbidding you from spending your own money and "merely" penalizing you for it. Since the government cannot engage in the former, it ought not be able to engage in the latter. Hardly a controversial syllogism.
Meanwhile, since "campaign finance" jurisprudence is First Amendment jurisprudence, strict scrutiny applies: Is the restriction necessary to achieve a compelling government interest? Justice Alito holds no punches:
The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. [Bold added; underline in original.]
The Court also rejected "leveling the playing field" (i.e., restricting speech to equalize it) as a legitimate government interest. The Court saw the Millionaire's Amendment for what it was: Naked, brazen incumbent entrenchment.
There is a downside to the decision, however:
The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest.
Translation: There appears to be no interest on the Court — or at least an insufficient number of votes — to revisit Buckley outright. That's unfortunate. (Justice Stevens, meanwhile, would resolve Buckley's schizophrenic holding by going in the "Harrison Bergeron" direction and allowing the government to restrict self-funded campaigns equally with contribution-funded campaigns — i.e., no First Amendment for anyone.)
(The Court also struck down a disclosure requirement associated with the Millionaire's Amendment on similar reasoning.)
The case is Davis v. Federal Election Commission, No. 07–320 (June 26, 2008) (PDF - 39 pages). The Millionaire's Amendment appears as an appendix in the decision. Note that Buckley v. Valeo is on my list of "Worst Supreme Court Cases."
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Every campaign finance case is opportunity for libertarians to "stand above it all" and sigh with disappointment (disgust?). All sides in the debate seem to agree on one thing: The whole point of the exercise is to combat corruption in politics. Fair enough, and noble enough.
But it is the libertarians, and only the libertarians, who ask the precedent question of why we have so much corruption in politics. The answer is simple: Because government does so much that invites corruption, that caters to corruption and that perpetuates corruption. Things that have nothing to do with the core functions of government — the functions that the Framers did, and most people today do, associate with a free society. Things that are explicitly designed to benefit, not everyone equally or equitably, but some at the expense of others. From earmarks to tax breaks, from nanny statism to nanny subsidies, from oil wells to oil wars.
If the politicians didn't do so much that they were never meant to do, then no one would try to buy them. That would be the best "campaign finance reform" of all.]]>Linkfest: "Children, Students and the First Amendment"
http://kipesquire.powerblogs.com/posts/1213198170.shtml
Quick dispatches from here and there —...Kip2008-06-11T15:06+00:00 ITEM: The federal government continues its futile, warm-fuzzy-feeling efforts to censor the Internet in the name of "protecting children." The Child Online Protection Act, enjoined by the Supreme Court in Ashcroft v. ACLU, 542 U.S. 656 (2004) (a/k/a "Reno II" — and yes that's "Reno" as in "Janet" from way back in 1998) is again before the Third Circuit, where the Justice Department must convince the court that:
the availability to parents of built-in content filters
the fact that U.S. law cannot reach online porn posted overseas anyway
the fact that COPA "does not cover chat rooms, You Tube and other interactive sites that emerged in the last decade"
are all somehow irrelevant and that age verification ("a belt and suspenders approach" according to the DOJ lawyer arguing the case) is the "least intrusive way" to achieve the law's stated goals. Expect the court to yet again find the law unconstitutional. Flagship post here.
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ITEM: Here's an incident where the censors claim not to be protecting the children but rather the parents —
In the short walk across stage, Joseph Bryan Shore, 18, elicited more than boos when he allegedly cursed out his family and flipped the bird to the crowd, according to authorities. Immediately after the [high school graduation] ceremony, two police officers took him into custody and charged him with disorderly conduct.
...
The principal of Arab City High School, Patrick Crowder, said he regretted the incident but that he had no choice other than to have Shore arrested.
MY TAKE: The principal "had no choice"? Over a few moments of some profanities and the finger — both of which are unambiguously protected free speech, even in "dignified" (the principal's term) settings such as, e.g., a courthouse? Without more, this sounds not only like a improper arrest but also a civil rights violation that would survive a qualified immunity challenge. (Related late entry here — it is graduation season, after all.)
Newark Public Schools has settled a lawsuit filed by a former student who claimed he couldn't attend his graduation from West Side High School because it was held in the sanctuary of a local Baptist Church.
Bilal Shareef, a Muslim student, said his religious faith prohibited him from entering a building with religious icons, such as pictures of God or images of the cross. He skipped the ceremony held at New Hope Baptist Church in June 2006.
...
The district also agreed not to sponsor or promote religious events, not to hold student events in places of worship and not to hold student events in other religious buildings unless religious images are covered.
MY TAKE: It is beyond absurd to suggest that a public school district as large as Newark's cannot find suitable secular locations to hold high school graduations and therefore simply "must" have them in churches. If all else fails, then have them at the schools themselves — that's where mine was held. I don't buy the "no other suitable site" excuse for using churches as polling places, and I don't buy it here. (Via Religion Clause.)
A high school newspaper in Northern California has been disbanded after it published a front-page photo of a student burning an American flag, triggering criticism that the administration was stifling free expression.
...
The Redding controversy is the latest example in recent years of high school and college administrators in California attempting to censure [sic] student-run newspapers or punish those who oversee them.
MY TAKE: I always tread lightly on this topic, since I am not convinced that there is a "right to a (taxpayer-funded) school newspaper." And no student was disciplined or penalized for exercising her free speech rights (cf., the Doninger case I recently updated here). But the fact that the topic that resulted in the newspaper's termination — flag burning — is itself protected expression and generates so much faux indignation by activist legislators and other anti-rights malcontents certainly gets my libertarian dander up.]]>Artist Harassed by Police for "Assassination" Wordplay Exhibit
http://kipesquire.powerblogs.com/posts/1213040603.shtml
While so much attention was (rightly) focused on the outrageous proposal in the District of Columbia to initiate a patently unconstitutional "papers please" vehicle checkpoint regime, another just-as-patently unconstitutional display...Kip2008-06-10T10:06+00:00proposal in the District of Columbia to initiate a patently unconstitutional "papers please" vehicle checkpoint regime, another just-as-patently unconstitutional display (no pun intended) of police power occured here in New York City:
New York City police detectives and Secret Service agents briefly detained and questioned an artist on Wednesday morning as he installed an exhibition with the title, "The Assassination of Hillary Clinton / The Assassination of Barack Obama."
The artist, Yazmany Arboleda, tried to set up the exhibition in a vacant storefront at 264 West 40th Street in Midtown Manhattan, and had finished stenciling letters of the title on the plate glass windows at street level.
...
"I'm renting that space; the space was allocated for an exhibition, and it's my right to put those words up," he said. "They said it could incite someone to do something crazy, like break the window. It's terrible, because they’re violating my rights. If someone breaks a window, they're committing a crime."
He added: "The exhibition is supposed to be about character assassination. It's philosophical and metaphorical."
The Secret Service seems to have possibly overreacted but in the end respected Mr. Arboleda's First Amendment rights. The same cannot be said for the NYPD:
Speaking to reporters around noon, Police Commissioner Raymond W. Kelly said Mr. Arboleda had been questioned because the police wanted to determine his motives. "Obviously, they could be interpreted as advocating harm to protectees," Mr. Kelly said.
Put aside the pesky facts that (1) "having motives" is not a crime, and (2) "detained" is just a slick way of saying "seized" — as in a Fourth Amendment "seizure." Kelly's final attempt to wiggle off the hook, "could be interpreted as advocating harm to protectees," is also worthless as a rationale for abridging First Amendment rights.
The test for censoring speech based on potential civic disruption is Brandenburg v. Ohio, 395 U.S. 444 (1969), which provides the famous "imminent lawlessness" test:
[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
That's a far cry from Kelly's "could be interpreted as advocating harm" — failing both the "imminent" and the "likely" prongs of the Brandenburg test. Not to mention that art is generally not considered "advocacy of the use of force or of law violation."
The exhibit display was covered up by the owner of the building Arboleda rented. That is not state action and does not implicate the First Amendment; it is merely a contract dispute. Point conceded. And there may well be little constitutional harm in law enforcement or the Secret Service seeking to question the artist at his convenience. But forcibly detaining an artist, even for "mere" questioning and then applying the wrong constitutional test to the answers generated by such "mere" questioning crosses both Fourth and First Amendment lines that yet again demonstrate that liberty requires eternal vigilance at least as much as does the War on Terror.
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I am furious at myself for not saving the link, but someone, somewhere, left what may be the best comment ever in reference to this story:
This isn't shouting "Fire!" in a crowded theater — this is yelling "Theater!" in a crowded fire.
Dang, I wish I had thought of that, for there is much truth in it.]]>Does the Constitution Count as a "Legitimate Reason"?
http://kipesquire.powerblogs.com/posts/1212695641.shtml
(Please see update below.)...Kip2008-06-05T19:06+00:00(Please see update below.)
By now you have likely seen the utterly outrageous reports that the District of Columbia, most recently known for holding the Second Amendment in absolute contempt, has now upgraded — or downgraded, depending on your nomenclature — to likewise trampling other parts of the Bill of Rights:
D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.
Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate "Neighborhood Safety Zones." At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn't live there, work there or have "legitimate reason" to be there will be sent away or face arrest, documents obtained by The Examiner show.
Some hasty stitches:
--The right* of otherwise law-abiding citizens to be in and move through public spaces, with or without identification and with or without a "legitimate reason," is well-settled law. See Papachristou v. Jacksonville, 405 U.S. 156 (1972), Brown v. Texas, 443 U. S. 47 (1979), and especially Hiibel v. Nevada 542 U.S. 177 (2004), (Breyer, J., dissenting). (*I would be just as happy to use the term "privilege and immunity," but that doesn't get you very far, no pun intended.)
--The requirement that one's purpose be "legitimate" is of course unconstitutionally vague. "Legitimate" — to whom? By what standard? Is walking one's dog a "legitimate reason"? Proselytizing on behalf of the Mormon faith? Collecting bottles for the nickel deposits? Taking your kids to a blighted area to "see how the other half lives"?
--Suppose I show up at such a checkpoint and simply declare: My "legitimate reason" is my desire to exercise my First Amendment right not to need a legitimate reason. Do I win because I have a legitimate reason or because I don't need one?
--Speaking of unconstitutional vagueness, what will the criteria be for determining which neighborhoods deserve this Checkpoint Charlie nightmare? Will the designations be subject to race-based or other discrimination challenges, much like our statutory and judicial approach to fighting gerrymandering or busing?
--Going back to the Second Amendment and the pending decision in District v. Heller: Most libertarians wasted little time in debunking the hopelessly silly "Congress has plenary Article I authority over the District" canard by asking whether Congress could, hypothetically, repeal the First Amendment within the borders of the District. Who knew that the District would actually consider trying it? See also the (just as hopelessly silly) claim that the federal government can authorize, without constitutional amendment, full voting representation for the District in Congress.
UPDATE: Subsequent media accounts now clarify that the checkpoints will be vehicular, not pedestrian. That changes neither the outrageousness nor the unconstitutionality of the program — only the precedents with which to analyze the proposal. Indianapolis v. Edmond, 531 U.S. 32 (2000) is both clear and directly on point: Vehicle checkpoints, without individualized suspicion and established merely for "general crime control purposes," violate the Fourth Amendment. Accord, U.S. v. Lidster, 540 U.S. 419 (2004). My void-for-vagueness analysis is also still entirely applicable here, as would be any requirement that passengers in the vehicle produce ID (the driver would of course be required to produce a valid drivers license).]]>"Comment Left Elsewhere" of the Day
http://kipesquire.powerblogs.com/posts/1212452242.shtml
I really have no desire to be a Bible scholar, so I wish theocrats would stop making me have to look this stuff up:...Kip2008-06-03T10:06+00:00look this stuff up:
The Jewish tradition in which Jesus lived and taught demanded that just rulers make a minimal provision for the poor, including no-interest loans and the distribution of agricultural commodities. (Look it up: Exodus 22:25-27 and Deuteronomy 24:19-21.) The apostle Paul held a high view of government's role in promoting justice and urged the willing payment of taxes — a biblical demand more severe, for some of us, than all those sexual prohibitions.
As I noted in a few comments on this, most recently here:
At least some, if not most, translations of Exodus 22:25 say "excessive interest" or "usury" and not just "interest."
The passage could also easily be interpreted as a call for discrimination: Do not charge one of my people (i.e., another Hebrew) excessive interest. Open season on exploiting goyim, however. (See also Deuteronomy 23:20.)
And the passage says nothing about government-mandated law — just being a good neighbor (and, of course, avoiding God's wrath).
Wrath which, as well all know, is limitless — at least in the Old Testament.
It's quite simple really: The Bible is large enough, covers a sufficiently long time frame and has so many different (earthly) authors that anyone, from a Randian to a Leninist, from a Catholic to a Mormon to an atheist, can find a stray verse or two to support their secular viewpoint and agenda. See also, "whales."
If you try to claim Moses or Jesus (or, for that matter, God) as one of your loyal constituents, then you'll have to do better than one lone backwater verse. Just ask the shrimp.]]>Linkfest: On Principals and Principles
http://kipesquire.powerblogs.com/posts/1211502015.shtml
Two quick school-related entries --...Kip2008-05-23T00:05+00:00 ITEM: Should the heckler's veto be recognized in a school setting?
Josh Hemingway [a student at Lake Brantley High School in Altamonte Springs, Florida] placed shredded pieces of the American flag between his photographs. He says combined with the pictures, it was supposed to show a message of hope even in a fragmented society.
But according to the school district, the principal was concerned the shredded flag could cause outrage, so the school took it down.
"I thought that's what this country was founded on, freedom of speech and expression. That's guaranteed in our first amendment," Hemingway said.
MY TAKE: As convoluted and confused as our First Amendment student speech jurisprudence may be these days, the heckler's veto (i.e., "causing outrage" -- especially hypothetical "outrage") remains a wholly illegitimate basis for censorship, in or out of a school setting. Stated differently, as convoluted and confused as Florida educrats may be these days, they are still in neither Canada nor Denmark and have no authority to abridge freedom of speech so baselessly.
Irmo High School principal Eddie Walker says he will quit a year from now, citing a conflict between his religious beliefs and the potential formation of a club for gay awareness.
In a letter to the school and the Irmo community, Walker said the Gay/Straight Alliance Club "conflicted with my professional beliefs in that we do not have any other clubs at Irmo High School based on sexual orientation, sexual preference, or sexual activity."
He added that the school teaches abstinence and a gay-straight club implies students joining the club would "engage in sexual activity with members of the same sex, opposite sex, or members of both sexes."
MY TAKE: Even ascribing the best of inferences to Principal Walker, it's still sad to see an educator so uneducated as to resign over a fallacy (i.e., that GSAs are nothing more than "teenage sex clubs"). As one local activist organization explains:
GSA's give students who are gay bi and straight, a safe place to support each other, talk about issues and work to end homophobia. Many GSAs function as a support group and provide safety and confidentiality to students who are struggling with their identity."
Stated differently, it's hard to have a "gay-straight alliance" without any straights. How that makes a GSA a "gay sex club" is unclear. A simple premise lost on this obsolete educrat, whose resignation is probably the best outcome for all involved. ]]>Kip Clip #10
http://kipesquire.powerblogs.com/posts/1211007460.shtml
Yesterday I noted some theocrat malcontents whining about how the IRS, in attempting to enforce minimal restrictions on their political activities as a reasonable condition of enjoying tax-exempt status, actually...Kip2008-05-17T15:05+00:00noted some theocrat malcontents whining about how the IRS, in attempting to enforce minimal restrictions on their political activities as a reasonable condition of enjoying tax-exempt status, actually have the gall to hypocritically cry "First Amendment" and "separation of church and state."
These are, of course, the same theocrats who lie about the United States being a "Christian nation" and who have apoplectic fits at suggestions that maybe, just maybe, the Ten Commandments does not belong in a secular courthouse or classroom or that maybe, just maybe, legislative sessions should not be opened with prayers, especially sectarian prayers.
In circumstances like this, perhaps it would help to recall just how far we have indeed come and to recall exactly what kind of church-and-state relations some theocrats would unhesitatingly return to if they could:
I can just imagine the conversations taking place in Catholic and other theocrat offices at the moment: "If Massachusetts and California start spreading their filth in America, then we are in for trouble — all of us!"
They are already in trouble.
]]>Theocrat Clerics to Stage Frivolous Tax Protest Stunt
http://kipesquire.powerblogs.com/posts/1210732564.shtml
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...Kip2008-05-16T15:05+00:00review (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.
*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.
...
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)
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.
]]>"One Negative Person"
http://kipesquire.powerblogs.com/posts/1210244029.shtml
Fascinating case study in theocratic majoritarianism versus secular libertarianism:...Kip2008-05-08T10:05+00:00case 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.
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."
*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.)]]>Posner's <i>Morse</i> Error in the Anti-Gay Shirt Case
http://kipesquire.powerblogs.com/posts/1209074617.shtml
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...Kip2008-04-24T22:04+00:00last 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) ]]>"Only Tepidly Negative"
http://kipesquire.powerblogs.com/posts/1209074214.shtml
The latest round in the "Be Happy, Not Gay" t-shirt wars —...Kip2008-04-24T21:04+00:00"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."
---
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.
...
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.
*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)]]>There is No "I" in "Team" ... or "Jesus"
http://kipesquire.powerblogs.com/posts/1208481445.shtml
I recently wrote the following regarding a Decalogue lawsuit:...Kip2008-04-18T01:04+00:00wrote 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).
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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)]]>For Every Good Scalia Sentence...
http://kipesquire.powerblogs.com/posts/1207999832.shtml
....there is an equal and opposite bad Scalia sentence:...Kip2008-04-12T11:04+00:00bad Scalia sentence:
Thomas Jefferson and the other founding fathers never intended to eliminate religion from government.
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.
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..]]>Punishing "Practicing Journalism Without a License"?
http://kipesquire.powerblogs.com/posts/1207358002.shtml
It makes perfect sense to two groups of people — professional journalists* and bloodthirsty dictators:...Kip2008-04-05T01:04+00:00bloodthirsty 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).
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.
...
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.]]>Hoki, Hoki, Happy, Hour
http://kipesquire.powerblogs.com/posts/1207272512.shtml
Just a quick pass-long so Tony doesn't get upset with me:...Kip2008-04-04T01:04+00:00pass-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)]]>Linkfest: Two More Decalogue Cases
http://kipesquire.powerblogs.com/posts/1207099612.shtml
Two lawsuits handed down from the mountaintop —...Kip2008-04-02T01:04+00:00 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 Ordenbifurcation. 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.)]]>Plastic Dashboard Jesus: Bon Jovi Fan or Probable Cause?
http://kipesquire.powerblogs.com/posts/1207073253.shtml
The Fourth Amendment has become a lost highway:...Kip2008-04-01T18:04+00:00lost 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).]]>"You Don't Single Out..."
http://kipesquire.powerblogs.com/posts/1206876304.shtml
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...Kip2008-03-30T11:03+00:00follow-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.
...
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.
...
"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.]]>CRS Recommendation: The Law of Church and State
http://kipesquire.powerblogs.com/posts/1206806374.shtml
A Stitch in Haste recommends the following report from the Congressional Research Service:...Kip2008-03-29T15:03+00:00A 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.
The sole function of the monument ... is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message: ... This State endorses the divine code of the "Judeo-Christian" God.
--Van Orden v. Perry, 545 U.S. 677 (2005) (Stevens, J., dissenting)
A bizarre (i.e., dead wrong) Decalogue case in the Ninth Circuit:
The monument at the heart of this dispute was donated to the City of Everett [Washington] in 1959 by the local aerie (chapter) of the Fraternal Order of Eagles, a national civic organization. It sits adjacent to Old City Hall on public land under the City's control. The Old City Hall building itself now houses only the police department. The monument, which is located along a sidewalk about forty feet north of the entrance to the building, is constructed of granite and stands about six feet tall. Its main feature is an inscription of a non-sectarian version of the Ten Commandments[.]
Since this is essentially an identical Eagles-donated monument to the one upheld in Van Orden v. Perry, the Ninth Circuit chooses that Supreme Court precedent over its companion case, McCreary County v. ACLU, and upholds this Decalogue's continued presence on government property.
What I always took away from the "McCreary - Van Orden" Decalogue bifurcation was not that a Ten Commandments display on government property would be permissible if it "reflects a primarily secular purpose" (since, of course, it is beyond delusional to suggest that there can ever be a truly secular purpose to a Decalogue -- it is a purely religious symbol with a purely religious message; any suggestion to the contrary is the most insolent sophistry).
Instead, the only workable "McCreary - Van Orden test" is:
Decalogue as "one among equals" in a series of historical or legal displays: permitted under the First Amendment
Simple, easily applied, and at least somewhat rationally anchored.
This is why I say that the Everett case is "bizarre" -- it falls not on the Van Orden side of the line at all but obviously on the McCreary side! The fact that "it's the same FOE monument" completely omits the "collection of items" context of Van Orden, especially relative to the "stands alone" counterexample of McCreary.
"Eagles Decalogues are okay" simply was not the holding of Van Orden, and "stand-alone Decalogues are not okay" simply was the holding of McCreary. The Everett Decalogue was irrefutably a "McCreary Decalogue," not a "Van Orden Decalogue," and the Ninth Circuit was irrefutably wrong to invoke the latter case rather than the former.
That's my ruling. Any dissents?
---
Meanwhile, is this case a victory for the theocrats who can't seem to tell the difference between a courthouse and a church?
The City's intent is the key here, and nothing apart from the monument's text suggests a religious motive on the City's part. We reject Card's assertion that the presence of clergy at the dedication ceremony distinguishes this situation from Van Orden. All indications in the record are that the Eagles arranged and funded the dedication. While the Mayor was present to accept the monument, as noted above, the City had many plausible secular reasons for accepting the gift, and we will not infer a non-secular purpose. We agree with the City that there is also some contemporary historic relevance to the monument -- as a testament to the Eagles' lengthy relationship with, and contributions to, the City.
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.
Also:
The district court judge visited Old City Hall, and observed that there was "an air of neglect or disregard," in the display of the monument. Discussing the 1988 relocation, the court noted that "[n]ot only was it moved off of its corner perch ... but the City opted to relocate it to a spot behind one of the three War Memorial monoliths and almost surrounded by trees and shrubs that significantly impair most views of the monument."
Again: 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.
Win the battle, but lose the culture war?
The case is Card v. City of Everett, No. 05-35996 (9th Cir., March 26, 2008) (PDF - 26 pages)