Archive for August, 2012

Football, freedom, and the First Amendment: public school sports teams and religious liberty

August 28, 2012

It’s interesting reading the dueling partisan treatments of the Freedom from Religion Foundation’s recent cautionary letter to Walker County, Georgia, about that county’s school system’s rather evangelistic understanding of the rules of football. According to the Christian Post, whose headline reads “Atheists Attack Church for Feeding High School Football Players,” the Freedom From Religion Foundation is basically trying to outlaw religion in Georgia. The Freedom from Religion Foundation’s more recent release is mostly spent ridiculing the Christian legal foundation offering to represent Walker County in any legal actions that unfold from the FFRF’s original letter (though in the FFRF’s defense, Liberty Counsel’s breathtaking incompetence is indisputable).

Some background. The Freedom from Religion Foundation sent a letter to the school system of Walker County, Georgia, last week, warning them over complaints about aggressive Christian evangelism on the school’s football team. What the Christian Post’s article snidely dismisses as the kindly charitable acts of a few well-meaning churches (intruded upon by unseemly out-of-state atheist forces) is alleged to be considerably worse than that. According to the Times Free Press and the FFRF’s press release, the school is being specifically warned about:

• “Football team trips to a church for meals and Christian messages

• Coach-led postgame prayers

• Bible verses on team apparel

• Mariakis’ participation in the Fellowship of Christian Athletes

• Pressuring students to attend a Christian football camp.”

The First Amendment jurisprudence on questions like this has been pretty consistent for the last couple of decades; perhaps the easiest way to put it is that the Freedom from Religion Foundation wins its legal battles consistently more than groups like Liberty Counsel does, not to say that the FFRF has gone undefeated. While the courts have some waffling inconsistencies on issues like displays of religious creches on government property during religious holiday seasons, the battleground of the public school is pretty friendly  territory for the secular jurist. If you’re completely new to First Amendment jurisprudence on how and when the state can condone and restrict religious activity, here‘s a good place to start.

The courts have long recognized the important difference between religious people doing religious things in their own private institutions, and religious people doing religious things through a government-provided megaphone like a school or a courthouse. While there is of course nothing illegal about leading Christian prayers for the football team of a private Christian school, things get harrier when your tax dollars and mine are the ones paying for it directly.

The Lemon Test, as it’s called, is technically a test the courts use for evaluating new laws, as opposed to non-legislative government action like a state-employed football coach preaching to public school students, but the general principles behind the Lemon Test are consistent across church/state jurisprudence.  The Lemon Test consists of just a few, simple questions you should be asking when you see government energy being expended n ways that are apparently religious:

1. Does the state action serve a secular purpose?
2. Is the state action at least facially neutral and non-discriminatory among religious opinions?
3. Does the government come out of the action still untangled from religion?

If the answer to any of those three questions is “no,” you’re in trouble. Again, this specific three-question test is only technically appropriate for a time when a court is being asked to review a law passed by a state legislature or by Congress; the Lemon Test wouldn’t be strictly applied in circumstances like a public school football game, but the principles are the same.

By taking a government paycheck and spending his days in a government school guiding the activities of public school students who are compelled by law to attend that school, the coach of the Walker County football team has placed himself deeply beneath the purview of the Constitution. He has become a “state actor,” meaning a person who doesn’t hold any elected office or position of political authority, but who still, by virtue of their position, has a special set of legal duties over and above what the normal employee has. Imagine a spectrum of employees, with police officer or Congressman on one end (hardcore state actor) and contract worker for a private company (totally non-state actor) on the other. A public school gym teacher is much closer to the police officer than the contract worker, even though it doesn’t seem like he’s doing anything particularly “government-like.” He isn’t writing any laws, he isn’t putting anyone in jail. He’s just doing his job (with a Christian twist to it, to be sure), but what’s most important is that his pay comes straight from the government, and that his pay is for working at a public school.

Public school teachers have a captive audience, on authority granted straight from the government and on state funds. They’re as much a direct arm of the state as the Congress itself, which is why the historical progression has been to cleanse them of sectarianism entirely: Bible readings are out, teacher-led prayers and “moments of silence” are out, creationism has been thrown out more times than I can remember (just kidding, it’s six major cases), and prayers at sanctioned events like graduations and football games have gone the same route. If the Walker County schools are wise, they’ll heed the failures of past attempts to mingle churches with public schools and play football like it’s a sport, not a brainwashing opportunity.

Is there still a legal case for gun control?

August 25, 2012

The spate of high-profile spree shootings over the last few weeks, from Aurora, Colorado to the Empire State Building (where it seems most of the spree-ing was by cops), all the way back to a shooting in Arizona that killed several  and left Congresswoman Gabrielle Giffords brain damaged, has brought the dead issue of gun control back to a short, sad life. Short because the question seems to average one major article per media cycle per spree killing before being dismissed, and sad because the usual context in which gun control seems to come up these days is in the context of explaining why we won’t or can’t ever actually get it. Politically speaking, gun control is off the table and has been ever since the reactionary tide against the Brady Handgun Bill established the National Rifle Association as the final arbiter of any weapons-related legislation. Since then, the NRA has had an increasing string of successes in firearms lobbying, from the death of the DC gun ban to the expiration of the Federal Assault Weapons Ban. Recent case law seems to be just as big a hurdle to any future gun control, with probably the most decisive and strongly-worded case being the Heller decision from 2008.

But does it have to be this way? Has it always been this way? Conservative political forces and their allies have dominated the gun control debate for years now, but I for one am skeptical of the permanence of the results they’ve achieved. The general trend over the last couple of decades has been towards more or less unqualified firearm ownership rights for all Americans. While much of the Brady Handgun Bill, which was designed to institute background checks for firearms purchasers and to create several classes of citizens who would not be allowed to own guns, survived legal challenge, the central mandate of the bill has not. The bill’s mandate that state and local law enforcement officials be involved in a rigorous screening and approval process for new firearms purchases was struck down in the NRA’s legal challenge to Brady, in a case called Printz v. United States. Scalia’s opinion in that case rejected the power of the federal government to make those kinds of demands on state and local law enforcement personnel, but otherwise upheld the constitutionality of a registration scheme, and local law enforcement has followed through on the mandate with or without the Supreme Court’s permission.

So while Brady background checks have survived their de facto down-striking by the Court, subsequent gun control attempts have been rejected outright. The most famous of these is the 2008 Heller case, which rejected Washington, D.C.,’s right to ban all handgun position in the District on Second Amendment grounds, and it was a narrow leap from there to a 2010 case finding that the Second Amendment forbids state gun control as much as it does federal. McDonald relied on an uncontroversial Constitutional doctrine known as ‘incorporation,’ which is just what the Court calls it when it applies a Constitutional amendment to the states, which has been normal treatment for Constitutional amendments ever since the 14th Amendment was found to apply the Constitution to the states directly. So McDonald is uncontroversial; Heller is where the real action is at for gun control opponents. Writing for the majority, Scalia wanted us to believe that:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

But this has not always been the case; quite the opposite, really, and Scalia’s argument here is at odds with the plain language of the Second Amendment. Relatively brief as far as the amendments go, the Second Amendment reads in its entirety:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The immediate question for those of Scalia’s persuasion is, if the Second Amendment meant to completely detach the right to gun ownership from any other obligations like militia service, what is the first half of the amendment even doing there? The Second Amendment does not give blanket endorsement to gun control, it derives it from the necessity of a “well regulated Militia” (emphasis added).

The Second Amendment does not specify what exactly this “Militia” should look like, but the differences between the Framers’ militia and the modern-day militia are sharp. When the Constitution was written, the owning of a firearm was essential to the ability of the militia to protect the citizenry because everyone who joined the militia was required to supply their own firearm. The modern equivalent of the militia is the National Guard, which is more or less the civilian military of the United States, though the executive has been empowered to assume the Guard into a national chain of command. But the modern militia has plenty of resources to equip its members with perfectly good weapons, negating the necessity of firearm ownership for the success of the modern “well-regulated Militia.”

It also does not specify the limits of the term “Arms.” In the day of the authors of the Constitution, this was hardly a meaningful objection since “arms” pretty much universally meant the single-shot small arms that were essential to prying us out of the British Empire. None of the Founding Fathers ever had any reason to worry about assault weapons being sold from booths for cash to whoever could afford it. The Founding Fathers couldn’t possibly have foreseen our ability to multiply and multiply again the destructive power of commercially-available firearms each generation. It was simply short-sightedness on their part that led them to believe that easy access to firearms would just be a normal part of life for most Americans, who at that time were farmers who needed weapons to protect their livestock more than they needed them to protect their freedom.

Surprisingly, and contrary to the trend of recent Supreme Court jurisprudence, past Courts have been very open about these issues with the Second Amendment. Far from the free-wheeling guns-for-everybody attitude of the conservatives on the court today, the Court in 1939 used the opportunity of a man prosecuted for his ownership and use of a sawed-off shotgun to articulate this startlingly rational set of restraints on national firearm ownership:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

This line of argumentation is much more faithful to the actual text of the Second Amendment, which infers gun rights from militia rights instead of the other way around, than the conservative mainstream line of argument on this point. Hopefully the Second Amendment jurists of the future will look back to the wisdom of the court in this decision instead of resigning themselves to the rulings of a conservative bloc that is the majority in the Court but that has always been the minority in legal scholarship for answers to the questions raised by this recent string of mass gun-related homicides.

Another important point to remember is that while Congress’s purview over the sale or transportation of goods is generally limited to “interstate commerce,” an assault weapon sold anywhere has already traveled a good ways down the stream of commerce. The gun used to commit the Columbine High School massacre, for example, the Tec-9, was designed in Sweden, sold to a Miama wholesaler, then to a sporting goods store in Illinois, then to a Colorado dealer, who sold it to proxies of the Columbine shooters at a gun show, and then finally into the hands of the shooters themselves. That gun traveled through at least four different parties before being used to murder children. It is virtually never the case that a weapon used in such a massacre is bought legitimately, because it is simply easier to trace. Almost by definition, the kinds of guns targeted by gun control advocates move through interstate channels because the people who want to use those kinds of guns to kill innocent people prefer guns that have a convoluted distribution history.

The political will for gun control is almost non-existent because nobody has the courage or the wealth to stand up to the well-funded and well-connected National Rifle Association. But with the death toll rising from shooting after shooting after shooting, the public’s thirst for cheap and plentiful firearms will hopefully give way to a more rational evaluation of just how many machine guns the Founding Fathers intended just anybody to be allowed to own, and just how much help the militia needs from the kinds of people who are actually buying private deadly weapons.

Can American employers legally discriminate against humanists?

August 21, 2012

There’s an interesting article making the rounds about a workplace discrimination case brought in the UK that saw an employment tribunal officially recognizing “humanism” as what we in the United States would call a “protected class.” A protected class is any group of citizens against whom it would be unlawful to discriminate, whether it be in hiring, firing, serving at a bar or restaurant, or placing on ballots for election. Protected classes can include religious identities, ethnicities, veterans (and non-veterans); they aren’t limited specifically to religious or philosophical positions.

In the UK case, a musician who voiced political opinions against playing a concert with an Israeli orchestra, and was later suspended for six months over it, alleged in her complaint that among other things she was discriminated against for being a humanist. While she lost the case for lack of evidence, the tribunal held in no uncertain terms that humanism is a protected class where UK labor law is concerned.

This raises the question of whether or not American humanists would be likewise protected. Fortunately, unlike twisted miasma of European discrimination law, which is becoming redefined almost daily as the interplay between national and regional courts settles down, American law is very clear on this point. Title VII is the law we’re looking for, and it states in part that employers may not discriminate based on (among other things) “religion” in hiring decisions (with rare exceptions below), and that “religion” means:

(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

The qualifying language in the second half of the definition is designed to protect such legal absurdities as a Catholic church being sued for refusing to hire a practicing Orthodox Jew, or a toll booth being sued for not letting a Muslim worker lay a prayer mat down on the interstate five times a day.

So, does “religion” on this definition also include “non-religion?” Both the plain text of the act and existing case law is very clear in establishing that, yes, Title VII protects atheists. “Religious belief” is deliberately broad; it is meant to give courts as much room as possible to protect people based on their Constitutional rights to religion, non-religion, and conscience. I don’t think it’s a stretch to say that atheism is a “religious belief” insofar as it is a “belief about religion,” namely that most or all religions are wrong.

The courts have agreed. The most straightforward citation is to Akers v. Pena (you’ll need a Westlaw account to read the full article). Now, the atheist who brought this workplace discrimination suit lost the case, but not for being an atheist, just for lack of evidence. Much like the case in the article above, the appeals court in Akers went out of its way to say that

Here, appellant has alleged discrimination on the basis of religion because of his belief that there is no supreme being. He has alleged various forms of mistreatment which have occurred because of his atheism. Therefore, applying the case law mentioned above, we find that the agency improperly rejected appellant’s claim of religious discrimination for failure to state a claim.

Scrubbing out the gobbledygook, this is pretty plain language holding that a lower court’s holding held that one could not even claim discrimination over being an atheist (one would be “failing to state a claim” if one stated the claim that they were discriminated against for being an atheist) was wrong, that being discriminated against for being an atheist is actually an actionable claim. This is just part of the abundant caselaw on this question, which goes all the way up to a huge settlement by CitiGroup for discriminating against an atheist employee who happened to be the director of Tennessee’s branch of American Atheists. Clearly, their lawyers knew that discrimination against atheists was legally relevant; otherwise, they wouldn’t have settled!

The thornier question is whether or not “secular humanism” is likewise covered. We know that secular humanism has some kind of legal recognition; courts have at least found that humanism-based discrimination can at least go from the employer downward. In Taylor v. National Group, a court was considering a discrimination claim by a woman who said that she was sexually harassed, and that her employer was handing out books promoting secular humanism. The court, again, recognized that secular humanism was a legally-cognizable group for purposes of humanism, and dismissed this part of the woman’s claim only for lack of evidence (again).

But not all philosophies are treated equally. Veganism doesn’t cut it, for example. The common thread seems to be that some kind of perspective about religion or the supernatural must be in or near the nucleus of the sincerely-held opinion. While humanism has a moral and ethical component that is completely unrelated to religion, its opposition to religious thinking and claims is likewise a crucial component of secular humanism. The word “secular” is in there for a reason, after all. In sharing this particular commonality with all of the other groups that have tried and won under Title VII, secular humanism is almost certainly protected under VII’s definition of “religion,” if for no other reason than because secular humanism is philosophically inextricable from atheism, which is known to be protected. Furthermore, probably nobody would ever actually discriminate against a humanist for anything other than its atheism component, so any discrimination against secular humanism is likely to be legally tantamount to discrimination against atheists, just as someone who discriminated against people who wear turbans would have identical legal troubles to someone who discriminated against Sikhs.

Seemingly the only legally relevant obstacle to full rights for atheists is the several states whose constitutions deny atheists the right to serve in public office, but those are a joke. They are plainly at odds with the Constitution’s ban on religious tests for public office, and the courts have recognized that. The one time one of these little inquisitors’ codes was tested, it was struck down by a unanimous Supreme Court. All in all, I think it’s a foregone conclusion that American secular humanists enjoy just as many legal protections as the UK tribunal has just now confirmed that British humanists do.

Why Floridians’ tax dollars will likely be paying for kosher meals for prisoners in the near future

August 15, 2012

An Orthodox Jewish man incarcerated in Florida has filed a suit demanding that the state penitentiary provide him wish kosher meals, over and above the prison’s claim that to do so would be too expensive and threat to prison security. This case raises a nettled mire of First Amendment issues, but the long and short of it for the lay skeptic is that the man in question, Bruce Rich, is going to end up getting his kosher meals in prison because there isn’t any particularly good reason otherwise. Getting to that answer from these facts is a little mini-history of the last thirty years of how the Supreme Court handles religion and the government.

Rich’s suit is based on a piece of legislation on RLUIPA, the Religious Land Use and Institutionalized Persons Act. RLUIPA is essentially twofold: it prevents municipalities from zoning in such a way that imposes a “substantial burden” on land use by religious institutions (where such zoning is used to accommodate programs receiving federal cash or that involve interstate commerce; more on that in a minute), and it makes it harder for prisons to get between criminals and their gods.

Now, the reason why the zoning part of the bill has so many qualifications to its applicability, like interstate commerce or the receipt of federal funds, is because RLUIPA’s prototype, the Religious Freedom Restoration Act or RFRA, was struck down as unconstitutional partially because it lacked some of these qualifications. RFRA was itself a reaction against a Supreme Court decision holding that religious freedom can be restricted whenever a compelling state interest requires it and it cannot be reached in a less intrusive fashion (in that case, the Court ruled that an Oregon law allowing state agencies to fire employees found to be using certain drugs was constitutional, despite it getting a peyote user fired even though the peyote use was for religious rituals). RFRA was crafted out of the that the Court was going to start imposing on other peoples’ religious freedom, too. RFRA was promptly struck down by the Court, not on First Amendment grounds, but because it intruded on the Court’s ability to say what constitutes “First Amendment Grounds.” In RFRA, the Court saw an uppity legislature, incensed at the Court’s temerity to foreclose some religious freedom (the freedom to use peyote) in favor of state interests, and squashed them.

RLUIPA tried to maintain the same basic legislative goals as RFRA, but includes that language about things like interstate commerce and federal money for the zoning section, and “compelling interests” for the prisoners’ rights section, because those are the very criteria set by the Supreme Court itself. In short, RLUIPA was Congress’s way of both having and eating its cake: it wanted more or less unlimited religious freedom for prisoners, easy land grabs for churches and synagogues, and it wanted it constitutional. To date, RLUIPA has not been found unconstitutional, and between the subtle but significant distinctions between it and RFRA, as well as the significantly changed composition of the Supreme Court between RFRA’s death and today (one new Bush appointee and two Obama appointees so far), it just isn’t possible for us to know how that would go.

Back to Bruce Rich. The Supreme Court, in addition to the multitude of specific tests that it uses for certain clauses and amendments, has “levels of scrutiny” for certain classes of laws that ask how closely a law needs to be examined in order to be a candidate for a more specific test. These levels range from the “rational basis” review, which applies to most ordinary Congressional enactments and which asks that a law be merely coherent, up through “strict scrutiny” and beyond, which burdens the government with proving that a law is the only practical way of achieving a vital state interest.

Because the Florida jail is trespassing on a positive right very specifically granted by the First Amendment, namely religion, the Court is undoubtedly going to apply the strict scrutiny level of examination, as it has consistently in cases like this for years. The Court is going to be very suspicious of the Florida prison’s already dubious-sounding claims about price and safety. I can’t speak to their specific circumstances, but the fact is that kosher food isn’t much different from non-kosher food price-wise, so that part of the objection is unlikely to be taken seriously. I can see some merit to the security claim, if you think about how they’re going to convey kosher food to the right people – separate serving lines? Bigger serving facilities? But remember, the government will have the burden of showing that denying kosher food to an Orthodox Jewish person who, after being deprived of a myriad of rights by virtue of just being in prison, has a demonstrable religious preference for it, is the best, which here means least intrusive upon religious practice, conceivable way of getting at the vital state interest of having safe and affordable prisons. I strongly doubt that having to label one more thing in the chow line is going to cut it as worth the bother.

Especially given the precedent Florida prisons have to rebut. A 2005 case, admittedly from a different circuit but pretty compelling in its fact pattern, saw the Supreme Court requiring an Ohio prison to bend over backwards to accommodate the needs of a Satanist, a Wiccan, and a white supremacist Christian. Their demands were for the possession of certain non-dangerous objects in their cells, though, whereas Bruce Rich may need as much as additional space in a cafeteria facility, so there might be some wriggle room for distinction there. There is another deceptive counterpoint in the precedent, Gardner v. Riska, deceptive in that its facially similar fact pattern has a fatal flaw. In Gardner, a Florida prisoner lost a suit asking for kosher meals. Game over, right? Well in that case, the case wasn’t dismissed because RLUIPA wouldn’t allow it, but because Gardner’s suit didn’t even deserve RLUIPA’s attention – it was more or less adjudicated to be a frivolous filing by a man who, according to undisputed affidavits from prison employees, was known to purchase and eat non-kosher foods even when there were kosher foods on the menu. So tough luck there.

All in all, my money is going on RLUIPA surviving a direct constitutional challenge and its provisions getting Mr. Rich his kosher meals. We’ll see how it turns out.