Friday, November 13, 2009

Holy Moley

Today I’d like to look at two court cases, one which was recently argued in front of the Supreme Court of the United States and one which was recently decided in a high court in England.

The first amendment states in part – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The first part is called the establishment clause and the second part the free exercise clause. If you can’t figure out why, read it again.

That seems straightforward enough, and I’m pretty sure the founders thought that it would be easy to work with. After all, at the time, it applied solely to the federal government, and the states were free to establish and prohibit away, although they tended even by then towards the same principals in their own constitutions or laws. They just didn’t want an American version of the Church of England.

Of course, nothing is as simple as it looks. There were, actually, very few establishment or free exercise problems in America, and few Supreme Court cases too, until the 20th century (actually, the first Supreme Court opinion concerning religion and government finance was in 1899), when the federal government gained even greater powers and began to spend in such a manner that interaction with religion became unavoidable.

With spending came the problem of what happens when the government does so in a way that effects religious institutions or practices. This has been handled by the Supreme Court in such an inconsistent and juridically schizophrenic manner as to satisfy no one and offend practically everyone at one time or another. But, the way they handle financial issues is methodical and astute compared to the way they handle government use of religious symbols. The last major religious issue – prayer in school – has actually been handled somewhat more consistently – although this is probably the most controversial issue of all.

The question of the wall has been central to the dichotomy of interests in this subject. By wall, I mean the “wall of separation between church and State,” conceived by Jefferson as a metaphor for the first amendment religious clauses in a letter to a New England congregation. And, although his little buddy, Madison, probably thought deeper and wrote more about governmental religious interaction than Jefferson, it was the renowned Sage of Monticello (I will not take this opportunity to bash Jefferson, as usual) who has captured the public imagination on it as well as that of many judges thanks to his ability to turn a phrase.

The “Wall,” some protest, is not enshrined in the constitution, and inaccurate. However, the concept has come up in many constitutional cases and virtually always with approval, the first time in 1878 (I count 25 instances in Supreme Court cases). However, nothing in the law is ever so rigid as not to admit of exceptions or, at least, “fuzziness”. Thus, in the famous “Lemon” case (named after a person, not a fruit), the court opined:

“Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. . . Judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”

Two ideologies have developed concerning this issue that are somewhat coordinate with liberalism and conservatism. Separationists are those who tend to believe in a firmer higher wall and emphasize the establishment clause. Accomodationists tend to believe that the first amendment means only that the government can’t prefer one religion or sect to another, and, that the government can accommodate religion in general. They emphasize the free exercise clause. If I were so foolish as to label myself, I would say I tend to a separationist view, but with a wall that melts a little in the sun. There is room in my jurisprudence for accomodation as well, as long as the tail doesn’t wag the dog. Of course, the more extreme separationists or accomodationists would probably not believe I was wishy washy at all, but firmly committed to the wrong side.

Freedom of conscience is high among the most important of our rights, and religious belief is certainly a form of conscience, as that term is meant when used in this way. The founders seem to recognize that government involvement with religion hurt both institutions and they singled it out as being a special problem and therefore having a special status. Madison’s Memorial and Remonstrance is the most famous writing on this topic although it reads like a lead balloon compared to Jefferson's flowing prose.

The problem in judging first amendment arises because quite often the two clauses are not mutually exclusive. There is a ying/yang thing to it which many judges recognize as problematic. Enforcing one clause often has a negative effect on the other clause. To come to a decision some seek a compromise position and recognize their inability to do otherwise. As Chief Justice Burger wrote in a case concerning the right of Wisconsin to require children to be educated until 16 as opposed to the rights of the Amish to continue to have their tradition of older children working at home:

“By preserving doctrinal flexibility and recognizing the need for a sensible and realistic application of the Religion Clauses,

‘we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a “tight rope,” and one we have successfully traversed.’”

Naturally, this doesn’t please everyone and like most cases in America, you can probably find something like a rough 50/50 split. But, let’s get to the cases.

Salazar v. Buono was just argued before our high court. It concerns an issue which has been well covered before, the use of religious symbols on government property, with a twist. In this case, a cross, obviously a Christian symbol, has sat in the vast 2500 square mile Mojave National Preserve in California, originally put there by the VFW in 1934. In a remote spot, it has been used as a site for religious services on Easter pretty much since then. In 1999 there was a request to put up a Buddhist Memorial. The national park service declined but also said it was taking the cross down. The next year, however, congress legislated that federal funds couldn’t be used to take it down.

The following year, Frank Buono, a former park superintendant who regularly visited, sued to have the cross removed, stating that he, a Catholic, was not offended by the cross or any religious displays on government land for that matter, but he was offended because other religious groups couldn’t put their monuments up. The lower court found that he had the right not to be subjected to an offensive religious display and thus standing to bring the case (“standing” essentially meaning sufficient injury to sue). It also found that the purpose of the cross was to advance religion and therefore violated the establishment clause. But while the appeal was pending, congress legislated that the land be sold to the VFW in exchange for a few similar acres owned by the VFW but that if it was not used as a war memorial, it should revert to congress.

The court of appeals affirmed the lower court’s order that he had the right to sue and that the cross violated the establishment clause. Buono went back to the district court which then held congress’s attempt to sell the property to the VFW unconstitutional, because congress was obviously controlling the land, by requiring the land to be used as a war memorial (for which they would use a cross, naturally, as it is a classic war memorial) and taking the property back if it wasn’t used for that purpose. Again the court of appeals affirmed.

The questions before the Supreme Court might disappoint court watchers. The issue is not whether the cross was unconstitutional. It seems that the U.S. Department of Interior (Commisioner Salazar) didn’t want to pick that fight. They instead chose two safer routes – that Buono’s beliefs were ideological, not religious, and that there was no injured plaintiff (the usual requirement to have standing in most cases). Additionally, the govenment claimed that the sale of the property to a private group cures any constitutional problem.

The matter was argued by the Supreme Court this past week. Justice Scalia, who I have sometimes defended for what I believe are unfair attacks against him, was quite inconsistent with his famous jurisprudence which, among other things, insists that the court only to determine the arguments before it (as its rules state). For example, when the most recent abortion case came before the court a few years ago, he and Thomas both wrote that they believed that congress was without power to make such a law concerning abortion, an issue which was within the sole province of the states. However, as no party raised the issue, they could not rule that way (naturally, had they, they would have to find a federal abortion law they liked unconstitutional). Here, the issue of whether the cross itself was unconstitutional was not raised by any party and the rest of the justices did restrict themselves to the questions before them during oral argument (except perhaps Thomas who remains silent during oral argument). Scalia, however, kept trying to bring the issue back to whether the cross itself was a violation of the constitution, despite the fact that it is not before the court.

We have to wait for the court to rule. As with most controversial cases, it would not be hard to suspect that the conservatives would go one way and the liberals the other, with the “soft” conservative, Kennedy, making the deciding vote one way or the other. I’m going to go out on a limb and say that Kennedy will get this right and vote that congress’s purported sale was a see-throughable attempt to circumvent the first amendment establishment clause. Their refusal to allow the park department to use funds to remove the cross is a perfect example of what happens when there is religious-governmental entanglement – it snowballs. The further act of the purported sale to the VFW is precisely what the government claims it is not – a sham. In fact, it is such an obvious sham, that I cannot help imagining how the same lawyers arguing for the government here would howl if a defendant in a criminal case tried to claim it did not violate a crime by such an obvious ruse.

My guess is that Scalia and Thomas will argue that lower court was wrong about the cross being a violation of the first amendment in the first place even though this was not argued before the court. And they, and Roberts and Alito might argue that there is no standing as there really isn’t any injury to Buono. It certainly is hard to argue there really is. Obviously, anyone can be offended by anything. There would be a stronger argument for Buono if he had been refused to put up his own monument for religious reasons.

However, sometimes the court has extended standing to first amendment religion cases, without the requisite “injury” component, because it recognized that by holding citizens to this standard, there would be almost no curbing congress from violating the first amendment whenever it wanted, free of any check by the court. Although a couple of years ago a HORRIBLE decision by the court stepped back this judicial rule where the rule challenged was an executive order instead of a legislative act, but, it would probably require Kennedy to go there too. I view him as the equalizer on the court and I would be quite disappointed in him if he does.

The second case comes from Britain. There is no first amendment in Britain and although their unwritten constitution provides for religious freedom, it is not the same thing. Keep in mind, in Britain the Church of England still has some power and input into government. However, as I have no expertise at all in British religious freedom law, I will look at the case more from the policy point of view. That is, what should Britain do?

The case in question, decided this year, actually determined what a Jew is. I kid you not, the government of Britain, in the guise of avoiding discrimination, now determines what a Jew is. It wouldn’t matter to me whether they wanted to determine what a Muslim or a Christian or Buddhist is either. The fact is, the worst thing Britain could have done, even with its continued allowance of privilege to the Church of England, was to stick its governmental nose into religious beliefs. I imagine John Wyclif is rolling in his grave.

Here’s the case. An religious Jewish family applied for their 12 year son to go to the Jews’ Free School, which has been in since George Washington was born. Although the school may not always reject students because of religion, under the law it can give preference to Jews when it has more applicants than open spots. He was rejected because although his father was born a Jew, his mother is a convert. The Orthodox Jewish school believes that because she was not converted in an orthodox church, her son isn't Jewish.

It is amazing, in the country which inspired the notion of freedom in America and therefore throughout the world, it has been determined that a religion determining who is a member of its own group is discriminatory.

I cannot even comprehend the underlying ruling here. According to the court, the school did not determine admission based on the woman’s religion, since she practiced what she (and apparently the government) considered Judiasm, so that it must be based on her ethnicity – that is, she wasn’t born Jewish. This violated a national law known as the Race Relations Act, which, obviously concerns ethnic discrimination.

I do not argue, of course, that religious groups should be able to practice actual unlawful discrimination any more than any other group, but this ruling is not even internally consistent, as it cannot be contradicted that had she simply been converted in the Orthodox Jewish tradition, he would have been admitted. Thus, there clearly was no ethnic discrimination.

"If there is one thing that should be sacrosanct, it is who we “hang out with,” who we associate with, and who we deem, rationally or irrationally, to be a member of our own group.

The consequences of this are extraordinary. It means that one group of Jews may not distinguish itself from another by limiting its membership in a manner of which the government doesn’t approve. Once the principle is established, it means that not only are divisions within a religion safe, but in fact, no religious group, even the major religions, can be safe from evaporation by expansion of its membership by government decree. Although it is doubtful at this juncture in history, could it not be determined that all of the religions of which Abraham is the father figure, cannot distinguish itself from the members of another group. And, if that happens, won’t the most popular of the religions essentially be able to swallow the others? This is not as far fetched as it might seem. Despite Britain’s permissiveness to the Church of England, this is a serious blow to religious freedom. The trend towards government control of religion is one for which religious and other leaders in England and America, as well as other countries have long fought.

"There is an appeal pending to Britain’s high court, and I hope reason prevails. If not, in Britain, parliament is more powerful than any court. If it must, it should legislate an exception to its discrimination laws such that religious groups may set their own rules for admission. Likely that would forbid discrimination because of actual ethnicity. Although I would disapprove of any religion which discriminated on that basis, I would not be in favor of such a restriction. However, it would be better than the law which prevails now as interpreted by this court."

Despite our courts’ own wrestling with the first amendment, I do not believe a decision like this would have a prayer (pun intended) in the good ‘ole US of A.

The first amendment is certainly one way in which our government is superior to that of its parent. I will leave you with some words from Madison's Memorial and Remonstrance:

"Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves."


  1. Very interesting blog, Frodo. I agree with your analysis on the first part, think you need to look a little more deeply into the second. The issue is who gets to say who is or is not a jew (or any denomination for that matter). The student's mom is a jew by definition of some branches of judaism, but not others. This makes it less simple than "a religion determining who belongs to it.." since the orthodox wing is not the whole religion. In my view, the court is not the arena to decide this case, but too bad, since that's where it wound up. I'm not sure there is a fair or a "correct" or even a legally consistent verdict possible given the circumstances. Glad I'm not a judge.

  2. But, it sounds like you mostly agree with me. If you agree the court is not the place to decide this, would your point be that if something doesn't belong in court, but if brought there, the court should entertain it. That I can tell is the opposite of the law, here or in Britain.

    Obviously there are several varieties of Judaism, and that is the problem, but in my opinion, and certainly under the first amendment, any religious group can decide who belongs to it and who doesn't. The orthodox can decide that the reform or conservative or progressive Jews aren't real Jews and visa versa.

    That's freedom, Baby. The Brits have now decided the government determines what makes a Jew (and by extension, any religion). Not good. And in the British case, they picked one groups interpretation over another. Double not good.

    In the meantime, Google seems to have banned Montana Don from this site for the last few weeks, so, you have the comments all to yourself, and he is powerless to stop you.

  3. Hey David,
    Sent this one on to your niece - the one who is studying like mad at the moment. She sent me the original ruling article last week. I was slightly shocked that Britain waded into this. I expect this in Israel where this has been going on since the beginning of the state.

  4. Studying? I thought she was in law school. Why . . . ? Oh, maybe that was my problem.

    Thanks for writing.

  5. She did take off for a bit from studying for Thanksgiving. Poor girl - in between studying, her car battery died, her cell phone battery died, her computer died -- she is thinking that God is telling her not to trust technology.

  6. Folks . . . my sister, with a contribution we can all appreciate.

    To paraphrase the great Siegfried of Get Smart fame . . . Zis is Kaos. We don't do family business here.


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About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .