A Stitch in Haste

Even when I strongly disagree with a judicial opinion, I rarely wonder, "What were they thinking?" Judges are rarely if ever as duplicitous — or as dumb — as politicians so often are in explaining their positions.

Having said that, what was he thinking?

Using a Catholic church as a polling place does not violate the Constitution, even if voters are told to cast their ballots in a room containing crucifixes and other religious icons, a federal judge in Florida ruled.
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Judge [Donald] Middlebrooks said no reasonable person would conclude that the county was endorsing Catholicism or any religious symbols found in the church. He said the fact that Mr. Rabinowitz or others were offended did not amount to a constitutional violation. "An individual's subjective feeling is not dispositive," the judge wrote.

Perhaps, but that's not the point. The point is: How could any reasonable person not conclude that conducting the most basic — the most sacred? — government function, an election, in a house of worship violates the First Amendment? It boggles the mind.

To approach the question more rigorously, Judge Middlebrooks totally (so totally in fact that one could suspect his sincerity) misapplies one prong of the Establishment Clause test laid out in Lemon v. Kurtzman, 403 U.S. 602 (1971):

The Lemon test requires that the challenged practice have a valid secular purpose, not have the effect of advancing or inhibiting religion, and not foster excessive government entanglement with religion.

At issue is of course the third prong, "excessive entanglement" —

There is absolutely no evidence here to support a claim of excessive entanglement. None of the Defendant's employees at the Church participated in or monitored any religious activity, nor is there even an allegation that they supported any of the Church's religious icons or messages.

This is, of course, utter nonsense. It is flunk-the-final wrong.

The "entanglement" derives not from what "religious icons or messages" election staffers may or may not have supported. The Board of Elections is conducting the most solemn government function, enacting the most basic civil right of a citizen, in a house of worship. The very act is itself the entanglement. It is self-apparent and self-defining. What part of this is unclear?

As for "excessive," the analysis in this instance ought to be: Was there no alternative, strictly secular location in which to site the polling place? No school, no library, no civil hall? No other public location (or secular private location, for that matter), anywhere in this patch of West Palm Beach (hardly a sparse locale) that could have housed some voting booths and desks?

Elsewhere in the First Amendment (i.e., freedom of speech), government incursion of rights must be limited to the least restrictive alternative. This Establishment Clause "entanglement" question should face the same test: Only if the government can demonstrate, by clear and convincing evidence, that no reasonable alternative location exists should it then be allowed, strictly as a last resort, to use a house of worship. (Cf., Justice Kennedy's concurrence in the recent race-based school assignment cases: Only when all other attempts to benignly foster desegregation have been attempted should government consider race-based enrollments.)

Incidentally, the opinion indicates that houses of worship serving as polling places are paid rent by the Board of Elections (i.e., by voters and taxpayers). Are we at "entanglement" yet? The Supervisor of Elections is given discretion to select polling places — and has used/abused that discretion to select, according to the opinion, approximately 100 houses of worship (in just one county!) — are we at "excessive" yet? What exactly would Judge Middlebrooks need to see before he considered the situation an "excessive entanglement"?

Or, rephrasing the questions: What was he thinking?

The case is Rabinowitz v. Anderson, No. 06-81117 CIV (S.D. Fl., July 31, 2007) (PDF - 15 pages). Via Religion Clause and How Appealing.

Q: What's the only thing worse than taxing some people so that other people can fix up their private property "for the common good"?

A: Taxing some people so that other people can fix up their churches "for the common good."

[The case] involved a challenge to a Facade Improvement Plan (FIP) designed to enhance the appearance of a portion of the city of Detroit in anticipation of the 2005 Major League Baseball All-Star Game and the 2006 NFL SuperBowl. Under the program, approved applicants could receive up to 50% of the cost of improvements to building facades and parking lots-- with specified upper limits on reimbursements. Among the projects funded were nine by churches.

Taxpayer money is being used to build churches. Not faith-based initiatives. Not hospitals, schools or summer camps. Taxpayer money is being used to build churches.

And a federal judge, somehow, sees no First Amendment violation. (With two puny exceptions: No taxpayer money for stained-glass windows or large signs.)

What's worse, the judge openly acknowledges in his decision that not one but two Supreme Court precedents are directly on point and clearly demand that the funding be blocked:

If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the effect of advancing religion. To this extent the Act therefore trespasses on the Religion Clauses.

--Tilton v. Richardson, 403 U.S. 672 (1971)

If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair.

--Comm. For Pub. Educ. v. Nyquist, 413 U.S. 756 (1973)

No taxpayer money to maintain or renovate churches. No taxpayer money for non-religious structures that could reasonably be foreseen to be used as churches in the future. Schools, maybe; hospitals, maybe. But not churches. Not directly, not indirectly. No taxpayer money for churches, ever. How is this unclear?

The judge instead insolently ignores these unignorable precedents and falls back on every theocrat's favorite Establishment Clause case, Lemon v. Kurtzman, 403 U.S. 602 (1971), and another case, Mitchell v. Helms, 530 U.S. 793 (2000). As in another Establishment Clause travesty I recently blogged about, the judge simply assumes, indefensibly, that taxpayer money to build churches is "not an excessive entanglement" because non-churches are also getting taxpayer money (splendid). So -- presto! -- case closed.

This despite the fact that Tilton was handed down concurrently with Lemon (i.e., the latter did not overturn the former) and that Nyquist came after Lemon and clearly refines if not limits the Lemon test and must therefore be considered the controlling precedent.

(Mitchell v. Helms, meanwhile, concerned providing educational funds to religious schools and not taxpayer money to build churches, and is therefore wholly inapplicable to this case. Furthermore, there was no majority in Mitchell, but two mutually inconsistent opinions, one of which -- O'Connor's concurrence -- expressly rejects the framework adopted by the judge in this case, and the other -- Thomas' plurality -- cites, not unfavorably, to Nyquist anyway. Clearly this was not the correct case for this judge to elevate over Nyquist, which is unequivocally on point and far more relevant than Mitchell.)

But even using Lemon to resolve this fact pattern -- despite the fact that Nyquist is controlling -- the question remains: If taxpayer money being used to build churches is not a per se "excessive entanglement" for First Amendment purposes, then what exactly ever could be "excessive"? The Establishment Clause essentially becomes a nullity. (Compare: If "public use" suddenly means anything the government wants it to mean, then that part of the Fifth Amendment's protection against eminent domain abuse becomes a nullity -- precisely as happened in Kelo v. New London.)

If Lemon, Mitchell or any other case can be read to allow taxpayer money being used to build churches, then those cases are simply wrong. They are worse than wrong -- they are abominations.

The plaintiffs are, quite rightly, considering an appeal.

Finally, let the record reflect that if government did not engage in confiscating the income and wealth of some private people solely to give it to other private people, "for the community," then questions such as these would not arise. Go figure.

The case is American Atheists v. Detroit, No. 06-11696 (E.D. Mich., August 8, 2007) (PDF - 46 pages).

First it was a bureaucrat in West Palm Beach, Florida, deciding that there was, somehow, a desperate need to hire over 100 churches to serve as polling places -- with taxpayer money used to pay those churches rent. And that, to a federal judge, was "no big deal" as far as the First Amendment was concerned. It was, somehow, not an "excessive entanglement."

Then it was taxpayer money being used to renovate churches in Detroit, to "spiffy them up" in anticipation of a World Series and Super Bowl. And that, to a federal judge, was "no big deal" as far as the First Amendment was concerned. It was, somehow, not an "excessive entanglement."

Well, are we at "big deal" now?

[Louisiana's] general appropriations bill, HB1, signed into law last month, unconstitutionally directs taxpayer dollars in the amounts of $100,000 to Stonewall Baptist Church in Bossier City and $20,000 to Shreveport Christian Church. The grants were not subject to any oversight or competitive bidding process, and the bill offers no purpose or justification for the challenged earmarks.

No wink-wink gobbledygook excuses about needing polling places or beautifying the neighborhood. Politicians just went ahead and gave two churches -- not faith-based initiatives, not religiously-sponsored schools, hospitals or summer camps, but churches -- tens of thousands of taxpayer dollars for no reason at all, and with no strings attached. A taxpayer-extracted gift, from politicians to clerics -- Praise the Lord!

As I asked in the aforementioned posts: Are we at "excessive entanglement" yet? Who would dare assert that there is any quantum of sophistry that would make these political indulgences permissible under the Establishment Clause? Or was it simply a matter, as it so often is, of the politicians just hoping not to get caught in their moral defectiveness?

Meanwhile, as the theocrats pause to be thankful for the beneficence of ("democratically elected") politicians who fiscally rape taxpayers in God's name, I am instead thankful for the ACLU, which is suing to stop the insanity.

The (nascent) case is ACLU v. Blanco (E.D. La.) (Complaint PDF - 8 pages; "Memorandum in Support" PDF - 24 pages).

"The OGCMA welcomes everyone to enjoy this beautiful, seaside community without discrimination based on race, gender, income level, education, religion, or country of origin."
--Ocean Grove Camp Meeting Association website

I would love nothing more than to demonstrate the consistency of my libertarian ideals by insisting that, yes indeed, a Methodist church body in New Jersey is entitled to deny a lesbian couple the use of its private beachfront pavilion for a civil union ceremony. I would even refrain from asking why a Christian church would want to own a beachfront pavilion in the first place -- "camel-eye-needle" and all that.

Unfortunately, it's a little more complicated.

--First off, the pre-emptive lawsuit by the theocrat-bigots at the Alliance Defense Fund is ridiculously premature. You don't sue the government for investigating a complaint of illegality. You sue them for an improper finding of illegality. This is simply a pathetic fundraising gimmick on their part.

--More importantly, a beachfront pavilion is not a church, so it's not at all clear why such a pavilion, even one owned by a church, should enjoy whatever exemptions bona fide churches enjoy regarding anti-discrimination laws and such.

--Most importantly:

[Harriet Bernstein, one of the women who wanted to use the pavilion] said it also had been used for concerts and impromptu gatherings.
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The association says it uses the pavilion for a variety of programs such as a Sunday morning worship service and a Bible school class, and has rented the pavilion for wedding ceremonies.

Here's the problem -- if the pavilion is being rented out, then its owner -- church or not -- is a business. Businesses are generally required to pay taxes. Churches generally are tax-exempt; pavilions generally are not. Clerics generally are tax-exempt; entrepreneurs generally are not.

So the question becomes: Is the pavilion's owner, the Ocean Grove Camp Meeting Association (does that sound like a church to you?) enjoying an inappropriate tax break by renting the facility and not paying business tax on the income? If so, then one could argue that requiring them to offer their services -- their business -- in a non-discriminatory manner is a small price to pay in exchange for not having to pay taxes on the income they generate. Stated differently: the pavilion should enjoy (at most) one religiously-derived perk: either the ability to be bigots or the ability to rake in tax-free revenue.

But two bites at the "churches are exempt" apple is definitely too many.