My hobby meets Hobby Lobby - Religion in America II

I can hear people snickering. Too busy working to write your blog, hah, hah, hah. Fine. I admit it. I've been very busy being an attorney lately.  Or busier, anyway. I can't even really complain because I still do have a lot of free time - but - this work stuff has cut into my extra-free free time and I'd rather it wouldn't. And what has take the brunt of it? The best unread  blog in the world. But, now I'm back.

 

A few weeks ago I wrote on a case involving the practice of prayer before legislative sessions ("Religion in America: A Town called Greece").  The case was my segue  into some general questions about religion in America.  I broke the discussion into two parts, because I know my posts are too long for the few who actually read this evalovin' blog, but I think I can finish up this topic here today. One thing I've learned about myself - give me a computer and no editing restrictions (such as an article in a newspaper would have) and I will write and write and write. I never know until I get to somewhere between 6-8 Word.doc pages whether it has to be finished another day.  But, I'm going to try.

 

I'm not going to summarize the Town called Greece post other than to say that the court's decision is that legislative prayer continues to be allowed. My prediction was that it would, but in a slightly less Christian manner. Justice Breyer wrote a dissent which I had thought might have been where the majority came out. But, I was wrong in that and it was just allowed.  Instead I'm just moving on to another case, known by the name of the company arguing against Obamacare, Hobby Lobby, which is also more an introduction to the general question of religion in America, and where we draw the lines in the battle of the first amendment clauses. I think it is by far the more important of the two cases. Because while the outcome of the Town called Greece case is important, the idea that legislatures can continue to do what they've done forever in America - start the session with a prayer  - may be an annoyance for some, but is hardly scary. To the contrary, Hobby Lobby has a tremendous reach into whether we have the same law for everyone in this country or laws subject to individual religious notions.

 

As with the Greece case, Hobby Lobby deals with a serious problem concerning religion in America, albeit in a different form.  It concerns how to interpret the two first amendment religion clauses - the establishment clause and the free exercise clause, such that the law can be "fairly" applied - obviously a fluid concept - but at least in the minds of a majority of people, such that we can still say, in "so far as we approve of monarchy, that in America the law is king" (Tom Paine).

 

The facts of Hobby Lobby go like this. The Affordable Care Act ("Obamacare") has certain requirements for employers of a certain size to make health care available to their employees or face a tax penalty. The act also requires that the policies provide contraceptives. The owners or managers of some companies have religious beliefs that include the notion that contraceptives are immoral. They do not want to provide their employees with policies that provide contraception which they believe constitute abortion by preventing the egg from implanting in the uterus (e.g., Plan B - the Morning After pill), though apparently contraceptives like condoms are okay because there is no fertilized egg.  On the other hand, they also claim they feel a religious duty to provide health care to their employees (don't look in the Bible - you won't find it there).  If they do not do as the federal government tells them to do, they face significant penalties.

 

Here is where it gets complicated. To get past outrage from religious organizations the government later determined that actual houses of worship would be exempt. So, the church that employs a gardener does not have to comply. But religious organizations that become involved in secular businesses with a certain amount of employees, such as a hospital, do have to comply. And they too have sued.

 

More complicated, if those religious organization fill out a short form that states they are taking a religious exemption, they avoid the penalties and the insurer has to pick up the cost. It is argued that this is still no good, because if they comply and exempt, then another entity will have to comply -probably the insurer, which ultimately means other insurance customers pick up the tab - and they feel that is no better; abortion will still be taking place on account of them.  So, there are essentially two groups - corporations where the management does not want to provide insurance coverage including what they consider abortion - and religious groups running secular businesses.

 

Of course, to even consider these arguments you must be able to ignore some of the other issues surrounding abortion. You can't just say - well, I believe in abortion; therefore too bad on them - without ignoring the religious freedom issue that even you yourself might want to exercise.  Those are very generally the facts.

 

There can be no legitimate doubt but that religion has been given a preferential position in our constitution. I went through in the last post the actual clauses and how we got there. Though I have never been religious nor understood the desire for it (which I feel can be easily distinguished from morals or ethics) myself, I am damn glad that we do this. And, in some cases, what is meant by religious belief has been expanded, particularly during the civil revolutions of the '60s to include the broader notion of conscience in general, whether connected to a deity or theology or not.  There is probably no other non-homogenous country that has handled its religious disputes so well as we, however imperfectly that may be, though I cannot say I have exhaustively researched this. But, no doubt as well that this is as a result of our first amendment.

 

But, what is wrong with the idea that people, exercising their religious freedom, may ignore laws that would require them to violate their beliefs?  In my view, a lot. But, like almost everything constitutional, it is a bit complicated and has been wrestled with long before we were a country or Europeans even lived on this continent.  But, since the continuous modern Republic with the notion that here the law is king, it has been developed here more than anywhere else.

 

It is not the only question, of course. Alongside it is the right of people to believe (as opposed to act) however they please and the freedom from religious persecution which has existed probably everywhere religion has force. The domination of one group over others is the common story of mankind and one that even today in some places is an argument that ends with torture and death. Even where toleration has been extended to other groups, it very often still exempts others.  And, I will suggest, when it comes to the issue of today, whether there should be religious exemption from the law, that the supremacy of one religion over another is still the issue. For I maintain that when you make an exception for any group's or any individual's religious beliefs against a neutral law that does not single it out, then the government is implicitly, even if never mentioned, picking one set of beliefs over another.

 

Certainly in our country, as far back as the 17th century, when colonies were still forming and populating, John Cotton, among others, championed the idea of religious purity and persecution. Opposed to him was a founder's founder, who is so infrequently mentioned in historical discussions about religion that it is almost secularly heretical - and that would be Roger Williams, who preceded by decades and was even broader in his ideas of religious freedom than John Locke of England (to whom he is most often compared) and Baruch Spinoza of Holland. When you study him you realize that two of our great religious toleration figures - Madison and Jefferson (and I will leave off beating Jefferson today) - took so much from him. Indeed, even Jefferson's most famous phrase on religion, found in a letter he wrote, concerning a wall of separation between church and state, was first put forth not by Jefferson (much that he thought was entirely derivative), but as far as we know by Williams.

 

It is not that Williams was not religious - he was devout. He just believed that intolerance was far, far worse than heresy, which should be argued only by persuasion.  This was not new to him either and he stood upon the shoulders of some great religious figures I have written of in earlier posts.  But, his piousness is one that modern people will recognize and generally approve of as it is greatly concerned with notions of peace and gentility as opposed to the fire and brimstone of Cotton and many others.  Williams, born and raised in England was trained in part by the great 17th century lawyer, Edwin Coke, and also studied with the famed writer (though I just can't read him) and sometimes apostle of freedom, John Milton. But, he took his beliefs much further than they or most others in his time ever contemplated. And there are many ideas that he formulated which are important to us, but none so important to our success and greatness as a nation as the notion that civil law may be made by a majority - but not one which excluded the beliefs of others - even non-Christians.  Thus, he protested the taking of Indian lands and made the first American law banning slavery even before the 18th century. Oddly, he quarreled with the Quakers, who could be quite annoying, though they are perhaps the most vociferous champions of religious freedom and abolition in our history for a religious group.

 

Look how the Williams' Rhode Island charter prefigures our own constitutional ideas of religious freedom (I have rendered it into modern English, for  though he came after Shakespeare, he is sometimes in his spelling much harder to read than the Bard for modern English speakers:

 

"No person within the said colony, at any time hereafter, shall be in any way molested, punished, disquieted, or called into question, for any differences in opinion in matters of religion, which do not actually disturb the civil peace of said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of land hereafter mentioned; they behaving themselves peaceably and quietly, and not using this liberty for licentious or profane behavior, nor to the civil injury or outward disturbance of others; any law, statute, or clause, therein contained, or to be contained, usage or custom of this realm, to the contrary hereof, in any wise, notwithstanding."

 

Notice that the key is the separation of law from religion. You could make an argument, of course, that the exclusion of "licentious or profane behavior" from the protection of the charter means it is only a paper tiger, but, in truth, you could make that same argument even today as we still exclude certain speech from the protection of the first amendment when it is deemed obscene (whatever that means), even if this is lightly enforced in the internet age.  We too still have on the books laws against adultery and even those are sometimes, if rarely, enforced.

 

But, while praising Williams as much as I can any of our pre-constitutional forefathers in the religious arena, I also think he was partially wrong.  For, if you read it closely it also means that law is also subordinate to religious beliefs, at least to the extent that the civil peace of the colony is risked.  And thus, to a large degree, is born (here and in his writings) the tension between law and religious belief that has stayed with us to this day and can be the subject of a modern case. In its time it was fairly revolutionary.

 

But while I may think he took a wrong turn here, our country does not.  For the idea of accommodation to (as opposed to dominance of) religion is to some extent still the law of this land and very popular with a majority of people. My disagreement is not in wanting religion to take second place to any other type of thought (and it has clearly been given a high place by the constitution) and it has nothing to do with my lack of belief in a deity, but my concern that any accommodation of a person's religious belief over the rule of law requires a decision about an individual or group that their beliefs are - in respect to the law - given precedence to others. Thus, in trying to provide more freedom of conscience by religious accommodation, the other great American principles of equal protection under the law and preceding principle that we have rule of law and not men are shaken if not destroyed. And that means there is a tension between religious freedom and all other freedom.

 

But, don't get me wrong. You cannot just apply black and white law on it. Judgment is often required. And judgment can always be deemed incorrect by others. And culture and mores can change over time, which make it even more difficult to navigate the whirlpools in this river.  There are many examples I could give which demonstrate this. Two come most easily to mind.

 

The first is the prohibition against polygamy, practiced for a long time by Mormons.  A number of Supreme Court cases have visited this issue and the conclusion has always been that there is no religious discrimination but merely the application of secular law. Of course, this merely demonstrates our inability to adequately demonstrate a way to separate legal morality from its religious sources. We have used similar rhetoric to uphold other religious customs. Blue laws that closed commerce on Sunday, not coincidentally the Christian Sabbath, was deemed to have become a secular day of rest and therefore - constitutional.  It was hard for many in opposition to see how this was doing anything but just making law out of a religious preference. Believe it or not this was an issue even in Roger Williams' day and Rhode Island did not have blue laws while he lived.

 

Though almost every judge has deemed this to be the case with polygamy (one district court judge in Utah has now slightly weakened this prohibition - at least as far as cohabitation is concerned, though not government recognition of what is officially deemed a marriage), I think it is wrong. Religious liberty must give way before generalized freedom or we must pick one religion or one person's conscience over another. For once you determine that marriage is between one man and one woman only, you decide (depending on whether you consider Mormons Christian) either that the Christian view of religion prevails over those of some Mormon believers (though they are rare) not to mention Muslims. Though we are very used to this in the United States, and I never even considered the idea that marriage could be other than between one man and one woman until I was long an adult. It doesn't mean it is right. The libertarian side of me wants to see government out of the business of regulating the relationships couples or quadruples want to form amongst themselves, particularly in aspects of it that are social institutions that are basically consensual associations between people determined to enrich their lives -- even if they are mistaken.  I feel the same way about it that I do about whether people themselves should control what day they want to close their shop, if at all. Individuals should control, not the government.

 

The second example is a well known Supreme Court case known as Employment Division v. Smith (I'll call it Smith).  In this case American Indians were fired for violating state prohibitions against peyote use. They challenged it on religious freedom grounds and it appears that their use was genuinely linked to religious ritual. The Supreme Court - and Judge Scalia, no enemy of religious accommodation, wrote the opinion, concentrating on the idea that though people have freedom of belief, they cannot violate "neutral law of general applicability" or, in other words, laws that don't single out religion for discrimination, apply to everyone cannot be violated. The peyote users wanted the well known formula of the state being unable to limit prevent their religious freedom unless it had a compelling reason applied in the least restrictive way (known as strict scrutiny).  It should be noted that the court held that the state could have accommodated the religious beliefs if they had wanted.

 

Our unemployed freedom seekers lost, but, in the end, the country decided they didn't like the decision. Congress quickly passed and Clinton signed into law The Religious Freedom Restoration Act, a law that I hold with the same contempt I do the equally poorly named Defense of Marriage Act, also enacted in Clinton's terms. The RFRA required the courts to apply strict scrutiny.  But, the battle wasn't over. The court ruled in City of Boerne v. Flores that the law was unconstitutional as applied to the states. I'm not going into the federalism issues underlying why it still applied as to the federal government, but, congress fired back with a similar law giving protection to religious land owners (a law which you can look up under the mellifluous acronym RLUIPA . It never ends. 
 

I want to state, I am not against all religious accommodation so long as it is extended to any conscientious belief and not just ones with well established dogma or ritual. The government should not be in the business of deciding what is a religious belief and what philosophical or political. Of course, this would make it, frankly, not much of a law at all, but a mere suggestion.  But, this should be made part of the initial neutral law of general applicability and not the whim of a judge who likes this bit of conscience or ritual or dogma over that one.

 

Let me bring this back to Hobby Lobby because I have my own conundrum with respect to it.  I don't like Obamacare to begin with. Why, because I feel the federal government has no right to determine our healthcare. Frankly, I feel the state governments should have very limited right to do so and only to prevent things like fraud or disease or other safety issues that are not easily recognizable and preventable by a willing person. I am not opposed to our having safety nets for people who need them, but they must be modest and not impinge on the freedom of those who do not want to participate. These are general freedom issues. However, I do not believe the owners of Hobby Lobby or a religious organization running a secular business should have any more right to disobey a neutral law of general application than I would, simply because they claim religious motivation.  The conundrum is this. The powers that be don't agree with me when it comes to the freedom issue. It has long been determined that save a few small areas of law, the government is pretty much going to run everything save a few small areas we still can call our own.  So, while I want everyone to get to make their own healthcare choices or to give their employees the benefits they desire which the insurance companies determine they want to make available, I'm not going to get it. And, while I don't want Hobby Lobby or others to get to have a privilege the rest of us don't, I'm torn by the dilemma of hoping they lose the case I think that everyone should win.


We simply cease to have equal protection and a rule of law (instead of men) if Joe can decide he's not violating the law and Mary has to obey it simply because she doesn't phrase her objection as a religious one.

 

Complicated? Of course, and more than this will be too deep for one little blog post. My prediction - I think the Court gets this one right and sticks with the wisdom surrounding neutral laws of general application.  But, seriously, what do I know?  When it comes to Supreme Court decisions I'm wrong all the time.

Religion in America - A town called Greece

I did a search on my blog to see how many times I've written about the Constitution and religion or about the role of religion in our society.  It is a topic I spend a lot of time, at least relatively speaking, studying. But, it turns out, for some reason or another, those thoughts don't end up here. So, I will have something to say about it today in terms of two recent cases before the Supreme Court, which in general concerns whether rather incidental religious acknowledgment has a place in our government and if so, how much and whether religious belief can exempt us from the law? I'm a wordy fellow and thus only going to tackle one today and perhaps the other next week (and when I say ''week," I mean, of course, "eventually."

Petitioning our government or litigating in court is a tense situation for most people. My experience is with court, not government, so I can speak more knowledgeably about that. I have ever noted that sometimes clients or adversaries come across with an almost blasé attitude towards the process. It is usually my opinion that at least much of the time it is feigned and they are masking a basketful of emotions which usually burst out at some inopportune time. And, although attorneys who regularly practice in court are more used to it, they have emotions too and in many circumstances are working hard to block the feelings underneath from showing. Lay persons go to court or the government expecting fair play - a government of laws, not men, and that their issues will be determined without favoritism. One of the biggest concerns of most attorneys I know is who is the judge? Sometimes the answer decides the case before it is heard. The hope is, of course, that we will have an independent inquiry without pre-determination and bias. And, that is how the system is portrayed. In movies, where the judge is other than fair, it is because he is bent or bought or evil. These things happen, of course, but not regularly in most courts. At least, not anymore.

In real life, of course, we know that authorities and judges are as biased as the rest of us. At least, we should know that. In fact, to pretend otherwise is foolish and I would say dangerous. When attorneys go to court they often know the biases of the judges they are before. Some judges even think it is acceptable to display open favoritism and cronyism with attorneys who they are friendly with or regularly appear before them. I don't approve, but it is so hard to prove without widespread agreement among attorneys that attorneys rarely bother to complain.

The reason that to pretend otherwise is dangerous is because if you don't recognize it, then you cannot even try to prevent it or have rules and procedures that minimize it. Of course, what I say here of court is true of government in general.


So, with that in mind, consider how the two women who brought a lawsuit against the Town of Greece, New York. The case name is The Town of Greece v. Galloway. Galloway is the name of one of the plaintiffs - in higher courts, the original case name is often reversed so that the name of whoever is appealing comes first.

The purpose of the suit is to end the town board's practice of beginning their meetings with a prayer led by an invited clergy person, and almost invariably Christian in tone, will feel when their Supreme Court oral argument begins with a ceremonial summons that contains the phrase "God save the United States and this honorable court." In fact, given the use of the word "save," it is not unreasonable to consider it a Christian ceremonial statement. 

Some facts about the case to give you the lay of the land. Just as in many other places, a town board governs Greece, New York. They have official meetings at which the town supervisor presides. Before 1999, the Pledge of Allegiance was recited followed by a moment of silence. But in 1999 the supervisor started to invite local clergy to offer a prayer to begin the meeting. There was some official notion made of the clergyman and the prayer and the "chaplain of the month" was thanked. Eventually, an employee of the town used a list of churches in the area from the chamber of commerce publication to invite the clergymen. There was an unofficial list of "Town Board Chaplains." The employee would basically go down the list until someone said okay. The list was exclusively Christian and through 2007 all chaplains who gave the invocation were Christian. Jesus was frequently mentioned and the audience was often included in the prayer as "we," indicating that they were included in addressing God. As this lawsuit was being considered, the town did occasionally have other clergy from other religions appear at a rate of one a year and there were specific references to non-Christian deities. There was never an official policy and the town officials insist that anyone - even a non-believer who wished to participate, would have been accommodated.

That did not in fact happen and the right for practitioners of other religions to lead the invocation was never generally made known to the public. Apparently one town officials said it in an interview, but that's it. The trial judge decided that the town's position, since it allowed other than Christians to participate, was constitutional. But the federal appeals court disagreed. They determined that legislative prayers were fine (as they have been for over 200 years) but that's the way the Town of Greece did it was not constitutional.

The Supreme Court took this case, but I doubt there will be a very definitive resolution. Based on the oral argument, Justice Scalia seems certain of his position, as he almost always does. Justice Thomas did not speak, which is his custom (I agree with him. Most of it is pageantry and there is little need for argument most cases, particularly now that all the reading material is available online. Though Thomas has been roasted for his silence, I heard the newest member, Justice Kagan recently state that oral argument is usually quite unimportant). One thing it does do is, usually, give us a first read on where most of the judges are going to end up. But, reading the oral argument transcript, the other judges seemed unsure of how to handle this situation.

It should be noted that one of the two plaintiffs is an atheist. She believes the only way to make the Town's practice truly constitutional is to do away with the prayer altogether. But, her co-plaintiff is a believer and just as the prayer be made more non-denominational. In arguing, plaintiffs declined to suggest a specific prayer they thought would be acceptable. Instead they indicated that there should be an announcement that there was a diverse group of beliefs, that the prayer can make reference to a supreme being, should be no reference to a specific deity or other denominational symbol, that there should be a time lapse between the prayer and any business and that no one should be asked to participate or any questions should be asked of the audience, such as when it was asked to them how many of them have been saved? Good God. That sounds to me like it would take longer than the prayer.

I have a much older friend, who, after going on a philosophical rampage likes to ended by looking up and asking, "So you ask-what is the answer? And it comes back - 'Schmuck!'" I'm not entirely sure what he means, but I think it is something about there not really being any answers. Enjoying both constitutional law and theology, I often find little difference in their interpretation. Experts in both fields seem to be more concerned with the result and any hyper-technical or logical approach. Some constitutional questions are simple, of course, such as-how old does the president have to be?  How do we elect a vice president? But obviously most questions are quite difficult and we find wide disagreement between both professionals and regular citizens.

What I can tell you with more certainty is that the Supreme Court is generally divided up among what are often called non-preferentialists, accommodationists and separationists. I can only generalize what these categories mean, of course, as with any political definition. Generally speaking, accommodationists believe that so long as the government itself does not establish a church, it can promote religion and give wide latitude for the religious beliefs of citizens to be part of the law. The non-preferentialist goes further and believes that government can promote and entangle itself with religion, so long as it does not favor any one group - which I would argue is impossible. Separationists generally believe that government should have no entanglement with religion at all, or, if at all, only in routine nondenominational and traditional matters, such as having the words "in God we Trust" on money. This is sometimes called "ceremonial deism."

Of course, all of these groups believe that the Constitution and the history of our country support their position. There are books on this and I'm sure many websites. Naturally, the First Amendment comes into play. Pertaining to religion, it is divided into two clauses, that unfortunately, do not blend seamlessly. It goes like this:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."

You can find, without a little effort, the history of how these words came to be. The amendments were proposed by James Madison, later a president, but then a member of the House of Representatives. This phrase, you may or may not be surprised to learn, did not spring full grown out of his head. The states had constitutions with various positions on religion, including his home state of Virginia and like statements of rights had been part of English law and American law. A number of people made suggestions which he considered. And, indeed, the actual language I quoted above is not the language Madison proposed. It was this, leaving out some legal verbiage:

 “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed”

And:

“No state shall violate the equal rights of conscience . . . ."

Clearly Madison wanted an individual to be protected from the states as well built into the constitution. Put his two clauses together and you would get:

"“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.  No state shall violate the equal rights of conscience."

These were debated by a House committee which whittled it down, but made it broader:

"No religion shall be established by law, nor shall the equal rights of conscience be infringed. "

Another proposal was debated, and you can see the final language slowly coming into shape.

"Congress shall make no laws touching religion, or infringing the rights of conscience."

Notice now that it is clearly congress as opposed to a state which is proscribed.  And it is a more powerfully put - no power to make a law even “touching religion.”

Some days later they considered this:           

"Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."

Of course, even as it takes shape, none of it is clear - what exactly are the rights of conscience?     How does that differ from just free exercise? Thoughts? Speech? Non-religious belief? It went from the House of Representatives to the Senate like so:

"Congress shall make no law establishing Religion, or prohibiting the free Exercise thereof, nor shall the right of conscience be infringed."

The Senate scaled it back a bit:

"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion."

Clearly, the non-establishment part is not as strong as the House's. Eventually, the Senate and the House negotiated it to our present first amendment, quoted above, though I left out the rest which speaks of speech, press and association rights.   

I take two things from this history. First, it is impossible to determine original intent or an original meaning of the text. There were two many candidates to know what congress was thinking. We do not know what was discussed by them or why they made the changes they did. What eventually passed was relatively expansive.  It abandons the idea of prohibiting just a national church and instead prohibits laws "respecting the establishment of " (i.e.,  more than prohibiting just "establishment") religion, though we know that has  been often honored in the breach. It also abandons language as to conscience (whatever that means) and gives religion a special place in our law.

The Court will almost certainly take what you could call an extra-textual short-cut in the Town of Greece case, as they have done in the past. After discussing a law that seems to violate the Constitution on its face, they often point out that we've been doing something for a long time - could be decades or even centuries.  In this case that something is legislative prayer. They will rarely change that without a complete societal change (such as with separate but equal). Thus, the real question they will determine will be - is the way they do it in the Town of Greece constitutional?   
 

It's my opinion, and that of many others, that the constitution has been so dragged through the thickets, and because of our system of precedents, the actual text can't really be applied in many respects anymore. Arguably, it never really worked that well outside of the very basics (that is, the simple questions I discussed earlier). Consider for example that most of the bill of rights is now applied against the states, though that is not what was written. Though I like the fact that the states are required to obey the bill of rights, or, at least that part of it deemed fundamental to our concept of ordered liberty, I really do not believe in the doctrine that these rights were meant to be applied to the states as a result of the word liberty in the 14th amendment. In fact, I would say this reading is a sham which developed and spread because that is what enough people and the judges who counted wanted, rather than the Constitution dictating it. Conservatives steadfastly and reasonably opposed it for many decades. Now however, since it has been recently applied to the second amendment, even they are on board with it.  So, if we forget the last 100+ years of rulings and just read the Constitution, the religion clauses would not apply against the states or their subdivisions, and people would have to rely on their own state constitutions, many of which contain religious freedom clauses that are not identical with the federal version. For example, New York's constitution has the following clause:

"The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state."

There is, you can see, no establishment clause in the New York constitution.  I'm sure you could make an argument that free exercise and enjoyment of religion includes someone giving an opening prayer before a town meeting in the manner they see fit.

Thus, I am left in a constitutional quandary. I really do not believe that the federal constitution we have protects minorities from state or local laws that establish religion. On the other hand, I think it should - I want it to.  Fortunately for me, the way the Constitution has been interpreted, it does apply against the states, but in such a way that it allows some minor entanglement of the government and religion - so long as it is non-denominational. There is nothing on the face of the Town of Greece's purported policies (if we can believe them) that makes it pro-Christian, but I think in practice, it will probably be deemed that it lends itself to that happening.

So, I will make a prediction for The Town of Greece. There will be at least 5 votes, including Kagan, Ginsburg, Breyer, Sotomayor and Kennedy, to strike down Greece's prayer at beginning of the meetings.  But, the town will merely be required to tweak their policy such that it is more inclusive of other religions, at least in theory. They will possibly have to have some written policy that affirmatively invites other voices than just Christians. Lists of Christian churches will not be sufficient. In other words, the town will be required to make its unofficial policy - official. Not much of a change.

Of course, it is very hard to see how that can work well in reality. What if, as is sometimes asked rhetorically, Satanists want to participate? Must the Town Board really suffer through an appeal to the Devil to open its meeting? Or a 99% Christian or Orthodox Jewish community suffer an atheist to give the benediction? What if they announce a party and no one shows up except Christians? Nothing will have changed. And, many will say, why should it? The invocation probably is, for the most part, a harmless ritual. I disagree in theory, believing that we can safely leave religion out of government and court completely, without suffering as a nation. Nothing stops religious people or groups from praying or celebrating their religion as much as they like outside of government. On the other hand, it probably is not much of a problem so long as anyone can in fact, get up and speak with a modern in words that are basically non-denominational. Naturally, that won't satisfy everyone, particularly those who want their religious views to be the favored ones. 

In the end, the Constitution really can't fix our problems except in establishing very basic rules that are never going to be perfect and can always be side-stepped and/or interpreted out of existence.  I have always been enamored by some words of a famous American judge, who is often cited by the Supreme Court - more than any other lower court judge - Justice Learned Hand. He   made  a speech during WWII and which was later printed in a book, The Spirit of Liberty (1944). There is a religious - Christian - aspect to it, which, is a little ironic given that Hand was privately agnostic. But, it is secular aspect of it that seems wise to me:

What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.

The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.

Playing off that - on one hand (no pun intended) I often credit the first amendment with being our country's greatest law and asset - because it has given a frame work that allows us to resolve our religious differences without resorting to self help or unilateral force. But, that in itself, without the spirit of our culture of which Hand wrote so eloquently, means nothing. John Adams wrote in a letter "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." It was difficult at the time to separate out moral from religious, though some few could. It is often nowadays just as difficult for many, though more are comfortable with accepting that morality can stem from other than religion. I hope so, for my sake.

But, obviously, many still disagree. They would perhaps more agree with James Madison - the other James Madison, the founder's  cousin, Bishop James Madison of the Episcopal Church, who gave a speech on a day of Thanksgiving (proclaimed/recommended by George Washington), which included these words -

"Fellow citizens, it is an easy task, For those who may have the honor of addressing an American audience this day,To point out the excellencies of our civil governments, to shew their superior aptitude for the promotion of political happiness, to evince that obedience to laws constitutionally enacted is the only means of preserving liberty, and that every expression of the public will is obligatory upon every citizen; to prove, that representative republics, instead of being the prolific parents of anarchy and confusion, are, on the contrary, of all the forms of government under which men have yet associated, either through compulsion or choice, the most promoted for private and public happiness,the most susceptible of that energy which is equally capable of curbing the licentiousness of the multitude or frustrating the wicked designs of the ambitious; it is easy for them to shew that virtue is the vital principle of the Republic, that unless a magnanimous spirit of patriotism animates every breasts, unless a sincere and ardent love for justice, for temperance, for prudence, for fortitude, in short, for all those qualities which dignified human nature, pervades, enlivens, invigorates the whole mass citizens, These fair superstructures of political wisdom must soon crumble into dust. Certainly my brother, It is a fundamental maxim that virtue is the sole of a republic."

This sounds much like the sentiment which Learned hand stated so much later in time. But, Bishop Madison goes on:

"But, zealous for the prosperity of my country,I will repeat, and in these days it is of infinite moment to insist,that without religion--I mean rational religion, the religion which our Savior himself delivered, not that of fanatics or inquisitors--chimeras and shadows are substantial things compared with that virtue, which those who reject the authority of religion would recommend to our practice. Ye, then, who love your country, if you expect to wish that real virtue and social happiness should be preserved among us or that genuine patriotism and a dignified obedience to law, instead of that spirit of disorganizing anarchy, and those false and hollow pretenses to patriotism, which are so pregnant with contentions, Insurrections, and misery, should be the distinguishing characteristics of Americans; or that the same almighty arm which hath yet protected your country, and conducted her to this day of glory, should still continue to shield and defend her, remember that your first and last duty is "to fear the Lord and to serve him"; remember that in the same portion as irreligion advances, virtue retires; remember that in her stead will succeed factions, ever ready to prostitute public good to the most nefarious private ends, whilst unbounded licentiousness and a total disregard to the sacred names of liberty and of patriotism will here once more realize that fatal catastrophe so many free states have already experienced. Remember, the law of the Almighty is, they shall expire, with their expiring virtue."

I do not know if Learned Hand would have quite agreed. But, I have no doubt that were a very old but cogent Bishop Madison and Justice Hand to be alive today, we could all sit down and have a very civil conversation, and disagree on few important things. Perhaps though, we would disagree on the necessity of values being transmitted through religion. And that, dear reader, is a topic for another day.

 

 

Look, it's their opinion - Snyder v. Phelps

Few parties in a Supreme Court case will bear the enmity and hatred that the defendants in Snyder v. Phelps do. Even murderers. In fact, in my own experience, regular folks discussing the defendants suggest that they be horse-whipped, beaten up and even killed. The case was argued before the court this past Wednesday. Yet, the defendants have not committed a crime and are not even accused of doing so. They have merely held up signs stating their opinions down the road from a military funeral. These opinions aren’t very popular.

Here are the barest facts. The plaintiff, Albert Snyder, is the father of a marine, Matthew Snyder, who died in Iraq in a Humvee wreck back in 2006. The funeral was held a week later in Maryland where the young corporal was raised.

The defendants are the Westboro Baptist Church of Topeka which is run by Pastor Fred Phelps (whose daughter, Margie, one of several lawyers in the family, argued the case at the Supreme Court) and which mainly consists of the Phelps family. The church takes the position that America has become immoral and they need to speak out so we all repent before it is too late. Almost 20 years ago the church began a practice of picketing public events, which occasionally draws public attention. In 2005, they started to picket funerals. They argue they are merely emulating Christ throwing the moneychangers out of the temple, and other prophets, and, I guess they are if you take what they say seriously. They actually don’t seem to care that much about moneychangers but focus on gays, adultery – and that includes someone who remarries - and other social ills from their point of view. Arguably, if you contest what they did, you also contest the prophets in the Bible who accused Israel of sinning. At least, that is a reasonable proposition.

Thus, the Snyders and the Phelps came together when the church picketed Matthew’s funeral. You might not be surprised if the Snyders are a little upset about signs that said things like “God hates fags” and “Priests rape children”. The Phelps were apparently upset that the Snyders were divorced and Catholic, so . . . . Moreover, they believed Matthew had died because of our collective sins, as nutty as that sounds to some (most?) of us. They didn’t stop at the funeral but went on in the same vein on their website where they claimed that Matthew’s parents had raised him for the devil, taught him to defy God and that he was a liar. You know, religious stuff that sounds a lot like the kooky mother in Carrie. As an aside, their website kind of makes me wonder, if Hitler was alive, would he have a facebook page?

The Phelps, in most people’s opinions, in even religious people’s opinions, are nuts, if not monsters. I don’t need an opinion poll on this one. I’ve yet to hear from one person who sympathizes with them or doesn’t feel sorry for the Snyders, including on various blog cites where you get almost every opinion. Some of that though is based on a misunderstanding of what really happened. I heard Margie Phelps speak years ago on the radio, and although I think she is frightening when it comes to religion, I also think she is bright, courageous and very articulate.

The Snyders sued on five grounds (I’ll ignore the conspiracy though) – defamation of character, publicity given to private life, intrusion upon seclusion and intentional infliction of emotional distress. Two were dismissed before trial – defamation and publicity given to private life, leaving the emotional distress claim and intrusion claims (plus conspiracy to commit same). After trial, the jury came back with a verdict of 2.9 mill. in damages and another 8 mill in punitive damages in the Snyders’ favor. The judge decided 8 mill. was too much and lowered it to 2.1 million.

On appeal though, the federal court of appeals, after saying how “utterly distasteful” the words were, acknowledged they were covered by the first amendment. Moreover, it wasn’t libel. They weren’t stating facts about Matthew. They were using hyperbole to express their opinions. In fact, they were just expressing opinions about matters which are frequently a matter of public concern. If you care, the court based its decision, in part, on the famous New York Times v. Sullivan case (where the rule was made that if you said false things about a public figure, you have to prove malice – that is, knowing falsity or reckless disregard for it) and Hustler Magazine v. Fallwell, where the court permitted on first amendment grounds to allow a sexual satire of Jerry Fallwell (leader of the Moral Majority, if you didn’t remember).

The issues for the Supreme Court may be a little esoteric. I’ll state the plaintiff (who lost on appeals) points very briefly and give my non-legalese response.

1) The speech used by the Phelps was not protected by the first amendment because the people involved were all private citizens (as opposed to public figures like Jerry Fallwell) and the statements were about private matters. Sure, the law applies slightly different legal principles if someone is a private citizen as opposed to a public figure, but I don’t see it making any difference here because I don’t really see any real facts stated, just hyperbolic opinion (even the Semper Fi fags does not mean they are falsely suggesting Matthew was gay). They didn’t really state anything that could be mistaken for an untrue fact about Matthew – stating that he died for our sins is not a fact that can be proven one way or the other and certainly doesn’t libel him. The Phelps claim they were not referring to the deceased, but everyone else in America. I believe them. As ridiculous as I find their beliefs, they certainly have the courage of their convictions, voluntarily open themselves up to every form of contempt and seem to go out of their way not to violate the law. In addition, the Phelps claim that the Snyders made their son a public figure by publicizing his death and complaining about the war. However, whether he is or not, they believe they are entitled to their opinion. The issues concerned are certainly publicly discussed - homosexuality, adultery, religion and so on. I can’t see it any differently.

2) If the Phelps have first amendment protection, the Snyders also have first amendment rights to practice their religion in peace and privacy. Of course they can practice their religion in peace. And they did. The Phelps were too far away to bother them - 1000 feet. That’s almost 3 football fields away including the end zones. Not only that – they left when the funeral started. The people at the funeral did not even know they were there and learned about it later

Right of privacy? Certainly not a constitutional right (there is no general all purpose privacy right in the constitution, although I imagine there are judges who would like to find one). But, that doesn’t mean that Maryland cannot prohibit it as long as it is not too vague. Would I have a problem with the Phelps coming into the church or screaming 100 feet away from them and interfering with the funeral. You bet I would. But they were a 1000 feet away! Meanwhile, other people expressing opinions, positive ones, were right at the church and certainly no one complains about them. How private is that? It seems not at all.

3) The family at the funeral was a “captive audience” which is protected in the law from suffering the slings and arrows of outrageous insults? Again, the Snyders weren’t even an audience. Mr. Snyder learned about the picketing on television afterwards and later still of the website. The popular image of the Phelps interrupting the funeral just doesn’t exist.

Those are my general responses. I’m not going to analyze the law further here. I’ll wait to the Supreme Court rules if I want to do it then, particularly if they come out against the Phelps and reinstate the judgment. At the end of the day, the court could completely agree with the appeals court and affirm the dismissal entirely or agree that the trial court erred in allowing the jury to determine matters of law and send it back down to determine any claims they still might exist (I think most likely, the emotional distress claim based on the website, if anything).

But, as reluctantly as all those who find the first amendment triumphant in this case are to support speakers they find detestable, this one seems easy case to me under the indisputable facts, never mind the law. In fact, as “sexy” as this case is, I really don’t know why the Supreme Court took it. Perhaps, they were as outraged as the rest of us at the content of the Phelps’ speech, and were hoping for a reason to reverse. Perhaps it was the many U.S. Senators who came in on the Snyders’ side. I hope the court does not treat it lightly or politically because this is an important issue. We can’t water down the first amendment just because someone’s viewpoint is offensive to others. However, if there is a weakness to the Phelps’ defense, it is the website, which made statements which arguably, could be said to be factual – like, they taught Matthew to hate the creator and that God is a liar. The appeals court found that this was hyperbole, and not actionable, and I agree.

But, loving to point out hypocrisy, both parties here have something to offer. The Phelps find our country immoral to the point that he who they believe created all are killing our soldiers, but they run to hide behind our most appreciated achievement - our constitution. That's not unusual, of course. Even critics of some modern constitutional rights hide behind them. As for Mr. Snyder, he claims that his privacy has been invaded, although the Phelps did not come near the funeral in the ordinary sense of the word - yet he does to them the most invasive thing he can think of - he sues them. Few legal acts are so personal. However, on his side, there is much evidence of actual emotional damage, unless he's just a great actor, and no one seems to think so. However, he forgets the old saying - never wrestle a pig in the mud; you both get muddy and the pig loves it.

I was stunned by the questions of the Justices at the oral argument as they seem to want to ignore the fact that the Phelps were so far from the funeral and did not interfere with service. That worries me a little.

One of the arguments I hear from those who feel that there were privacy interests here that trump free speech is that this was “hate speech” and therefore not covered.

We have many exceptions to the first amendment – defamation (libel or slander), certain breaches of the peace such as causing a panic such as the quintessential screaming “fire” in a theatre or fighting words, obscenity (and even indecency in certain circumstances), inciting someone else to commit a crime or to sedition, speech which constitutes involvement in a crime (e.g., bribery is essentially a crime of expression), intentional infliction of emotional distress and expression which is otherwise constitutionally prohibited (e.g., language deemed a violation of establishment of religion). It’s not a complete list. So, why not hate speech?

For one thing, there really is no such thing as unlawful hate speech in general. While there are hate speech statutes in many states, it does not exist in the air, and some of them are unconstitutional.

In a 1992 case, R.A.V v. The City of St. Paul, the court determined that a statute which made unlawful certain activities “which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,” including putting a Nazi swastika or burning cross on private or public property.

The reason the court gave for turning it down was not because a government can not make hate speech illegal (thereby making certain thought illegal), but because if it proscribes a certain type of speech (hateful), it cannot then pick certain types of that speech to be okay and other types illegal. Judge Scalia’s opinion, in my estimation, was illogical, and even if it is logical, it’s really hard to understand. However, one example he gives helps a little. The government can proscribe certain categories of speech (like obscenity or defamation), but cannot determine that certain obscenity is okay and other not based on content. You can make it illegal to burn a flag under fire laws, but not burning a flag to dishonor it. You can make defamation illegal, but not just defamation which is critical of government.

That’s Justice Scalia’s argument, not mine. I see it as a word game – defining sets within sets that don’t really even exist. Take obscenity. In order to find something obscene, constitutionally there must be a specific statute which specifically describes the obscene behavior. In other words, some activities which are sexual are not obscene and others are. Plus, only those acts which have no other redeeming value are obscene. Of course that is proscribing content, but Justice Scalia and the court don’t see it. You could apply R.A.V. to that rule and all of a sudden what is needed to make obscenity constitutional under the Miller Test (which I just described) because it discriminates, would make it unconstitutional under the R.A.V. test for the same reason. We do the same thing with defamation. All defamation is not treated the same. Those statements concerning which are vaguely deemed public matters gets the speaker more constitutional protection and persons who are so called public figures get less. That’s discriminating according to content either way you look at it.

I would have preferred a more straight forward rule that the government cannot ban speech just because it is deemed hateful by some. There is room to still ban acts of terror such as burning crosses on someone’s lawn or public property with intent to intimidate as the court found in Virginia v. Black (2003), although they struck the statute there because the burning was deemed prima facie evidence of intent. But, if you want to do it on your own property or have a swastika clock in your house, you should not be prohibited in my view.

The next year the court decided Wisconsin v. Mitchell, which somehow I had either missed or forgotten about until I was arguing with ubiquitous commenter Don one day about hate speech (admittedly, I can forget where I put a piece of paper which I am holding in my hand, but I don’t usually forget the stuff of arguments) when I googled it up on his ancient computer which I had to start with a hand crank. Don’s assertion that the Court had affirmatively found hate speech legislation constitutional was correct – marking, of course, the first and last time he has ever bested me in any argument. But everyone should get credit for their incredibly unimportant, meager, petty little victories, and I'm happy to give it.

In Mitchell the court allowed hate speech to be a reason to increase a criminal penalty. It didn’t really outlaw the speech itself, which the court stressed, but did permit it to be a factor in the court’s sentencing. Justice Rehnquist’s reasoning was that motive had always been a factor in the court’s determination. Of course, the court often finds that history trumps the constitution (except, usually, Justice Thomas), that is, until they don’t. I find the reasoning mere rhetoric. Whether expression permits a government to sentence to jail someone for terrifying someone with it or increasing the penalty for another crime because of it – it is still punishing based upon the content speech.

The other comment I frequently hear or see mentioned is that the Phelps’ signs and websites constituted fighting words. Fighting words can be constitutionally prescribed. The phrase was made famous in an old case, Chaplinsky v. New Hampshire (1942), where, almost laughably by today’s standards, was charged with using offensive words directed at another person in a public place. The words – “damned fascist” and “racketeer”. I get called worse all the time, and that’s just by family and friends. In fact, I am called a liberal and a conservative frequently, and I know that they are often meant as dire insults.

But, although the fighting words doctrine is still valid, it is less frequently used and I seriously doubt the original case would have passed constitutional muster either (then again, Chaplinsky was decided during WWII (when several bad decisions were made) and fascist was a very charged word. But, again, it must be remembered that the Phelps do not interact with the mourners at funerals. The Phelps never said anything to Mr. Snyder’s face and weren’t near him.

Without going through the history of cases in the past century which have greatly expanded free speech rights, increasingly the court has gone from punishing the speaker to protecting the speaker, with the exception of the anomalous case of Feiner v. New York, in which young Irving Feiner was arrested for making a black rights speech (he was white) in public, and the conviction was upheld by the Supreme Court (1951) not because of the content of the speech, but because it was all right for the police to arrest him in order to curtail his speech which they believed might cause a riot. Actually, it was one man who threatened to punch him and he was not near even Feiner and had his wife and kids with him. That’s what the official record says anyway. Mr. Feiner just died last year and was a feisty one right up until his death, even having a public feud with one of the Baldwin brothers over the right of an adult bookstore to open in their hometown just a few years ago. According to Mr. Feiner, there was nothing like the threat of a riot at all in his case, but that his message was very unpopular with the authorities in town as he was calling for support for some accused blacks.

Feiner is one of my favorite cases, not because it was rightly decided, but because of Mr. Feiner, who has frequently told his side for free to audiences right up into his 80s, and is charming in that old man way, but also because of Justice Hugo Black’s dissent (which were often beautifully written, even if you disagree). Justice Black correctly stated that it is the speaker who needs to be protected by the police but also wrote these words, which I fear we are in danger now of reversing:

“A man making a lawful address is certainly not required to be silent merely because an officer directs it. Petitioner was entitled to know why he should cease doing a lawful act. Not once was he told. I understand that people in authoritarian countries must follow arbitrary orders. I had hoped there was no such duty in the United States.”

The Feiner case and those like it concern what is known as “the heckler’s veto,” wherein those who don’t want to hear or see speech get the call as to whether it is permissible. If the judgment against the Phelps is upheld, I am afraid that we have seen the return of the heckler’s veto and an era where unpopular speech is thwarted by the thinnest and most unconstitutional of excuses for the real reason – someone didn’t like it.

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."