Archive for the ‘First Amendment’ Category

Galloway v. Greece: a Lemon Test no-brainer

August 7, 2013

Following a relatvely mixed ruling from the Second Circuit on the question, the Supreme Court decided a few months ago to take up the issue of whether or not municipal or state legislatures should be able to open their legislative sessions with sectarian prayer. The case, Galloway v. City of Greece, is based on a fact pattern familiar to every level of American government, from the Senate to local town councils: the legislative body in question opens its sessions with a prayer, almost universally led by Christian clergy, using ambiguous or non-existent criteria for selecting the clergyman or vetting the content of his (the clergy invited to perform the incantations are almost universally male) prayers, during hours that the legislature in question is supposed to be doing the business the taxpayers pay them for.

According to the briefs filed by the respondents, on facts that the Second Circuit noted were basically uncontested, the town of Greece, New York, fits the familiar pattern to a T:

The Town Board in Greece, New York, opens its monthly meetings with clergy-led prayer. With the exception of a four-meeting hiatus around the time of the filing of this lawsuit in 2008, the Town has relied exclusively on Christian clergy, who have persistently delivered overtly Christian prayers. Many of the prayer-givers have elaborated on Christian tenets and celebrated the birth and resurrection of Jesus Christ; one asked attendees to recite the Lord’s Prayer in unison; and another criticized objectors to the prayer practice as an “ignorant” “minority.”

Clergy request that attendees join in the prayers. Town Board members participate by bowing their heads, standing, responding “Amen,” or making the sign of the cross. Members of the audience do the same. At the conclusion of the prayer, the Town’s Supervisor typically thanks the prayer-giver for serving as the Town’s “chaplain of the month,” though he did not bestow this title on the few non-Christians who delivered the prayer in 2008. Many members of the audience are required to attend the meetings; children also routinely attend to fulfill a high-school civics requirement.

In short, the question before the Supreme Court is whether or not it is appropriate for the state to invite religious proselytizers of an almost exclusively Christian background to pray, and compel government officials and non-governmental attendees ranging from children in mandatory high school classes to public onlookers, to join in their proselytizing, on government time, using government funds, in government facilities, on behalf of the taxpayers, without violating a Constitution that expressly forbids the government from establishing a state religion.

This should be a brainer-free case. The flagship judicial test for whether or not the government has violated the First Amendment’s proscription against the establishment of state religion (hence the “Establishment Clause“) is the Lemon Test. Despite all attempts by the conservative wing of the Supreme Court to curtail the use of the Lemon Test, it remains the most common, and most accessible, test for whether or not an action by the state unconstitutionally establishes a state religion or otherwise infringes on the religious liberties of American citizens.

The relative paucity of brainers in this case is exemplified in some of the amici (“friend-of-the-court” briefs, basically, legal briefs written by parties that aren’t part of the lawsuit but that have some other interest, such as a moral conviction or political affiliation, related to the case) that have been filed for Greece by such notable champions of the separation of church and state as the Southern Baptist Convention (my religious alma mater) and the Republican-controlled Congress. The Southern Baptist Convention points out that denying the power of legislatures to open with sectarian prayer raises the ghastly specter of a Unitarian takeover of America. And as for the Republicans’ brief, well, lets just say that its “table of authorities” includes one actual statute, seven actual cases (more than half of which were decided in favor of the secular side of the case), and ten Bible verses.

Now, on the Lemon Test, there isn’t much to argue about. The Test comes in three prongs; to wit:

1. The challenged state action must advance a valid secular governmental interest
No prayer advances any valid secular governmental interest. The government’s interests are diverse and many, but none of them seems ever to have been advanced or protected by inviting sectarian interests, almost entirely Christian ones, to spend legislatures’ time praying. Now, either prayer is capable of causing real change in the world, or it isn’t. If it is, then whatever beneficence the Almighty seeks to bestow upon the peoples’ representatives are likely already accounted for in his divine plan (for the Calvinists in the audience), or, it can be accomplished just as easily and somewhat less controversially through the legislators’ private prayer rights that are absolutely and unreservedly protected by the First Amendment. And if prayer isn’t so powerful, then no amount of public pandering to religious interests will yield advance any secular governmental interests whatsoever, except for the interest individual legislators have in getting re-elected by friendly religious voters.

2. The challenged state action must not needlessly advance one religious interest over others
The key word in this arm of the test is “needlessly.” Many government actions advance religious interests: for example, tax exemptions for religious institutions doubtlessly advance religious interests, but the rules for those exemptions are so broad and ecumenical that even mafioso cults like Scientology qualify. But a significant component of the complaint in Galloway is that the city council’s prayers are almost entirely delivered by Christians, and the invocations often extend far beyond simple intercessory prayer into outright evangelism. For example, according to the complaint, there has been exactly one attempt to have a Jewish prayer open the town’s sessions, and it wasn’t even clear whether or not the person invited to deliver that prayer was a Jewish clergyman or simply a layman of Jewish background. Given the relative media hubbub that erupts whenever, for example, a Hindu or a Muslim clergyman is selected to lead such prayers in Congress or other legislative bodies, combined with the dire statistical summaries of who leads the prayers in the town of Greece given in the complaints, it stands to reason that the legislative prayer sessions are uniformly Christian in nature, they are highly sectarian, and they are often evangelistic in nature.

3. The challenged state action must not needlessly entangle the state with religion
This arm of the test is the heart of my own objections to legislative prayer sessions. How does the Congress determine who is “qualified” to give an invocation? Does the Congress, or the town of Greece for that matter, have either the authority or the competence to investigate somebody’s religious background sufficiently to know if the prayer they are giving is “accurate?” The very existence of this case suggests that the government is getting too tied up in internecine religious arguments for its own good by having these prayers at all, since the case forces us to investigate the bona fides of public prayer leaders in a way that the state is usually forbidden to do. We don’t want the state deciding that person x is a “real” Christian but that person y is not, that person x’s religion is appropriate for public display but person y’s is not. And yet the scheme of legislative prayer sessions forces us to do just that.

So, if the Lemon Test jurisprudence is so clear, why is this even an issue? Well, as the Second Circuit pointed out, the Supreme Court has had to examine the Constitutional muster of legislative prayer sessions, but in the flagship case in that area, Marsh v. Chambers, the Court did not apply the Lemon Test at all. Instead, the Court provided an articulate and interesting but I think entirely off-topic examination of the long history of American public bodies using prayer on taxpayer time and ruled accordingly. But the Court did not pause to ask itself the basic question of whether or not a violation of the Constitution is validated just because the state has done it a lot, as if the First Amendment comes with a grandfather clause or a statute of limitations, as if the Constitution contemplates ratification of unconstitutional acts just by doing them over and over again for a long time!

As such, while the legal question may be one about the legality of state-sponsored prayer, the practical question is whether or not the Supreme Court will actually use the Lemon Test in answering that question. As I’ve mentioned, the Lemon Test has sometimes been criticized by the conservative wing of the Court, mostly for delivering results unpalatable to Antonin Scalia personally and his acolytes by association. The Court has not clearly spelled out a precise test for when the Lemon Test is appropriate, instead seeming to apply it according to whether or not the outcome desired by the majority can be reached through that test or not. If it can be, the Lemon is hailed as the mainstay of Establishment Clause jurisprudence, and if it can’t, then the Lemon Test is derided as a relic of the liberal excesses of the mid-20th-century Supreme Court. It remains my hope that the Lemon Test, a perfectly lucid and logical exposition of the soul of the secular framework of the Constitution, will be used and will yield the appropriate outcome. If not, we leave it to the future leaders of America to see what happens when you combine political gridlock with religious gridlock, and hope that you all enjoy the outcome.

Obergefell v. Kasich: small but important gay marriage victories keep rolling in

July 24, 2013

“This is not a complicated case.” – Judge Black, in Obergefell

When last month’s big gay marriage wins came down, I was of course quite pleased but not delighted. Between the two of them, Windsor and Hollingsworth dealt a powerful victory to marriage equality, forbidding the federal government from denying marital benefits based on sexual orientation, but otherwise doing little to deal with the real obstacle to equality, which is state-level bans on gay marriage.

Specifically citing to Hollingsworth, a court in Ohio has created some important precedent in dealing with the state-level bans. Obergefell v. Kasich, handed down by Ohio’s Judge Timothy Black yesterday, quickly and decisively decides the question of whether or not Ohio will recognize gay marriages solemnified by states other than Ohio:

This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated. How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot…

Judge Black’s fairly pointed ruling incorporates gay marriage into both ancient precedent and Constitutional guarantee that the state of Ohio must recognize the judicial determinations of other states, including marriages. As Judge Black observes in his ruling, it has forever been the case that marriages that meet, say, the age requirements or familial restrictions of their native jurisdictions but not Ohio’s must still be treated as full and legal marriages under Ohio law. While this is clearly a victory for gay Ohioans, there are at least three very good reasons that this is a crucial victory for marriage equality nation-wide.

The first is that most states follow precedents about extra-jurisdictional marriages virtually identical to those in Ohio, and all of them are bound by the Full Faith and Credit Clause, requiring total acknowledgment of the official acts of other states. In this sense Obergefell merely reiterates the clear fact that marriages are such official acts and, ipso facto, Ohio is not free to deny their existence within its own borders.

The second, related reason is that this builds a new argument against gay marriage bans, which is that they are simply useless: Ohio has a state-level ban on gay marriage whose ostensible goal is to deny marital rights to gay couples, but instead all it does now is impose upon them the relatively minor inconvenience of traveling to Massachusetts, Maryland, DC, or any of the other jurisdictions that recognize gay marriage, get married, and come home. The illegitimate and discriminatory purposes of state-level marriage bans are simply impossible, for the simple reason that no state has the power to ban marriages of any kind – only to determine what kinds of marriages can be performed within its own borders. This has practical significance as well as constitutional significance – a discriminatory law that cannot really be enforced, or that is truly useless beyond purely-symbolic discriminatory rhetoric, retains the constitutional defect of in-fact discrimination, but lacks the constitutional virtue of serving a legitimate governmental function (since a useless law serves no function whatsoever).

Thirdly, Judge Black graciously decided to expand beyond the very minimal ground he needed in order for him to make his ruling. It would have been enough for him to say “gay marriage, interracial marriage, cousin marriage, turtle marriage, doesn’t matter – if another state says it’s OK, then we have to recognize it.” And that would have achieved all of the ends that are relevant to Ohio’s gay couples. But Judge Black also went on to build a strong Constitutional case on top of his decision to accept extra-jurisdictional gay marriages, citing directly to WindsorHollingsworth, and the mid-90s Romer v. Evans, which struck down a Colorado state ban on all legal recognition of gay couples:

In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal. As a threshold matter, it is absolutely clear that under Ohio law, from the founding of the State through at least 2004, the validity of an opposite-sex marriage is to be determined by whether it complies with the law of the jurisdiction where it was celebrated…

The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: “to impose inequality” and to make gay citizens unequal under the law. See Windsor…. It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group. Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association…

This elegantly establishes every important point of a constitutional case against state-level gay marriage bans, which are of course the next logical phase of the gay marriage equality movement. Obergefell is an important win in the next round, which will require more than the harsh constitutional regime under which the federal government operates. What the equality movement needs is robust precedent extending the doctrines that undergird Hollingsworth onto the states, and even obvious arguments like the Full Faith arguments that decided Obergefell go a long way towards de-fanging the existing gay marriage bans.

Sedlock v. Baird: when is a religion not a religion?

July 3, 2013

It’s nice when improper religious advocacy in public school is easy to spot. Teaching creationism, making students pray or recite creed statements, slapping crosses on the walls, those just make for easier cases. If “under God” in the pledge could ever get past the “standing” issue, I think that, too, would be a no-brainer case.

Then there are closer cases. A secular Bible history class, but where the teacher insists on using only the King James version of the Bible to all others – or, insists on exclusively teaching the Catholic apocrypha. A science teacher teaches the evolution curriculum to a T, but does it while rolling her eyes the entire time. “Purity rings.” These are the cases where real doctrine-making gets done, where there are actually cases to argue about.

The Superior Court of California (San Diego) just gave us a hard case that sounds like an easy case, Sedlock v. Baird: teaching yoga in public school gym classes is, apparently, not “religious indoctrination.”

For probably about 99% of the Americans who practice yoga, yoga is a form of exercise – at the most, a hybrid of exercise and meditation. Some of the verbiage surrounding yoga, like bringing out one’s “inner spirit,” or reciting “mantas,” greeting instructors or other pupils with “namaste,” are essentially cultural niceties that have no religious connotations whatsoever. Much like Buddhism, yoga’s importation to the West came with a considerable amount of secularizing, at least where the ordinary practitioner is concerned. Most people who practice yoga probably have just a peripheral awareness that yoga-as-exercise has its origins in yoga-as-religion, as a devotional practice in many forms of Hinduism.

The children of Encinitas Union School District’s public schools are required to take a certain number of hours of physical fitness every school year, and last year the District received a grant from something called the Jois Foundation (which, judging by its website, is a pretty small operation) to use yoga as the school’s primary means of physical fitness. Students whose parents were offended were allowed to opt out; there’s a factual dispute about whether or not those students received an alternative physical fitness program that satisfied the same hourly requirement, but lets put that aside for the moment and talk about the real issue: when is yoga fitness, and when is yoga religion?

The article cited at the top of the post with the news of the ruling is, I think, unfairly condescending to the plaintiffs in this case. The plaintiffs are fundamentalist Christian parents, which doesn’t help their case since it makes it easy to contextualize them as hysterically overreacting, but I’m not as certain as either the Honorable John S. Meyer, who decided this case, or the editorial above’s author.

Doing yoga by itself as exercise makes sense – I’m not a yoga practitioner myself, but I’m not going to seriously dispute that yoga has fitness value. But what I do dispute as having fitness value value are such things as mandala painting, healing prayer, extra credit for properly performing devotional hand gestures, posters depicting Hindu gods with Hindu theological terms written on them, all taught by private yoga instructors of dubious certification. I can’t quite figure out how, even if contextualized as “cultural trappings,” such things are at all appropriate in the context of physical education.

In fact, much of the dismissive verbiage in the op-ed that related this case to me quite distressingly mirrors similarly dismissive language that the Christian right uses to defend its own religious agenda for public schools. “‘Under God’ isn’t a religious marriage, it’s just American cultural trappings!” Ditto Bible readings, school prayers, prayers at graduations or sports games, ditto Ten Commandments on the walls and “theology” lessons or “alternatives to evolution” that always end up sounding like long-form Books of Genesis.

The “cultural trappings” of Hinduism are just as unconstitutional as the cultural trappings of any particular religion in America’s public schools. The knee-jerk reaction to the evangelical Christian plaintiffs in this case is understandable, since this is certainly one of the most martyr-complexed demographics in the body politic; to paraphrase Bertrand Russell, there are few critters on this Earth happier than Christians who think they are being oppressed. But in this case, we shouldn’t be too hasty to side with anything-but-Christianity because anything-like-Christianity is barred by a century of Constitutional jurisprudence and by the wisdom of the secularists who founded this country.

How did ‘Under God’ survive this long?

June 15, 2013

Today marks the 59th anniversary of the introduction of the phrase “under God” to the Pledge of Allegiance. The Pledge of Allegiance, which predates its Congressional takeover by several decades, originally contained no particular theistic commitments, but since 1954 has forced schoolchildren to recite a very specific, very sectarian credo. “There is exactly one God, no more, no less; he is trustworthy; and we trust in his judgment,” goes the longhand version of “in God we trust.”

“In God we Trust” seems like the perfect storm for Constitutional objections. Students punished for not reciting this particular section of the Pledge face the rather unappetizing combination of forced speech, and forced sectarian endorsement. Where the First Amendment protects freedom of expression, the Pledge of Allegiance compels one form of patriotic expression over all others and over silence. Where the First Amendment forbids governmental intrusion into matters of religious opinion, the First Amendment compels expression of a specific sectarian interpretation of theism. If Congress passed a law tomorrow saying that every American must say that America is one nation under God, the law would last about an hour and a half in front of the courts, and most of that would be the time it takes Scalia to obfuscate an obvious truth.

So why has “under God” lasted so long in the Pledge?

The main reason is the relatively esoteric “standing” doctrine of Constitutional jurisprudence. Every case calling for the repeal of a law that reaches any court of consequence requires that somebody actually be harmed by the creation or enforcement of  that law. To date, the Supreme Court has managed to dodge the politically thorny “under God” question by dismissing challenge after challenge not on the merits of the case, but on the standing of the appellant – that being, almost universally, Michael Newdow, parent of a child routinely forced to make the aforementioned highly-specific theistic commitment every day. Eager as always to dodge controversy, the Supreme Court was happy to treat Newdow as more or less unrelated to his own daughter in the one case with promise for challenging the clearly unConstitutional compulsory theistic commitment forced onto your children five days a week.

On its merits, “under God” is a no-brainer. For the government to compel you, an American citizen endowed with freedom of speech, to say anything at all is unconscionable. For that compulsion to be on a matter of theistic commitment is insult atop injury. And yet the Pledge has survived from this day in 1954 onward. The reason is not Constitutional support. The reason is not jurisprudential consistency, it is not principle. It is jurisprudential cowardice, tied to ancient Congressional paranoia. Nothing more. Happy anniversary, and may you soon rest in peace, “under God.”

With paternalistic religious pandering still all the rage in some parts of America, the “under God” question is not a merely academic First Amendment question. It is a question of how many politically easy descriptions of American religiosity the courts are willing to accept before they realize that the Constitution is being truly offended. Given the absolutely obvious Constitutional question of whether or not American children can be compelled to recite a sectarian religious statement, the Supreme Court’s historical reticence to do the right thing is truly unsettling. But with the Circuit courts permitting a challenge to “under God” to rise through the ranks in 2012, we may actually have an opportunity to see the Court face its own historical reticence. As a secular person myself, I for one cannot wait for the courts to confront the obvious, and to make amends for its historical evasions.

On Christian law schools

January 23, 2013

A planned Canadian law school at Trinity Western University has come under fire for a curious understatement of the Bible’s views on homosexuality. In what I understand to be a potential violation of Canadian human rights law, Trinity Western proposes to maintain, at Canada’s very first Christian law school, a behavior code that forbids students from, among other things, “sexual intimacy that violates the sacredness of between a man and a woman.

It shouldn’t be surprising that America already has a few Christian-themed law schools, the most famous of which probably is Regent University. This rigorous 3-year program, founded to spread “Christian leadership” throughout America, has historically woefully underperformed on bar passage and stunningly merely broke even with the Virginia state average last year. Some lures of attending Regent include a robust alumni network of Grand Inquisitors for the Grand Ole Party.

And Regent is actually one of the best Christian law schools around. California’s best Christian law school achieved a bar passage rate of 38.8% over the last five years, and all of the unaccredited Christian schools mentioned in that study have bar passage rates ranging from 0% to the 38.8% figure. The Christian law schools that aren’t busy cooking the books instead just come right out and charge you first-tier rates for last-tier lifetime income returns and last-tier job placement – lucky for all the gay students who can’t go to Liberty University.

I think that the main goal of law schools, which is to teach its students the law in a way that makes them fit to represent and advise other people, is fundamentally at odds with Christianity for a number of reasons. One of them is that Christianity has never had a good relationship with education in America. From Scopes to Dover, Christians have opposed honest, accurate science education where it contradicts their scriptures. Likewise with history, especially where it concerns the principles of religious liberty and secular democracy.

I can’t imagine how the law could be any different, especially since Christianity’s aggression upon American education is so entwined with the spectacular legal battles that it has been losing almost since the beginning. How could a Christian Constitutional law professor accurately describe the last fifty years of 1st Amendment jurisprudence without completely dispiriting any aspiring young Christian lawyer who envisions the Christian America promised him by Liberty University or Ave Maria? How is a Christian law school student supposed to get a good understanding of the theories of punishment when they’ve been told all their lives that all wrong-doing is pre-forgiven, that right and wrong don’t matter if you apologize to the right judge?

The fact is that the main problem is that religious was our first attempt at law as much as it was our first attempt at philosophy, and the law has moved on. Society has decided that it is no longer in our best interest to forbid homosexuals from full participation in the economy. Society has decided that apology does not waive crimes. We’ve taken the power of sanctuary from the Church and given it to embassies. We no longer rally nations by papal bull, we do it by international covenant. Churches can no longer freely invalidate marriages or contracts. We don’t permit the Levitical sale of slaves. We now treat the very things God ordered the Israelites to do as war crimes.

A Christian law school is an Apothecary Medical School, it is an Astrological Astronomy School, it is a British government degree granted by druids. Christianity is not just a freewheeling worldview that can be easily imposed upon any body of knowledge – Christianity and its Jewish predecessor texts are themselves a legal theory. Christianity is a theory of justice which says that a third party can forgive disputes between two others on his own behalf. Christianity is a legal theory which says that the law was frozen in place towards the end of the 1st century AD and that anything further is a falling-away. Christianity is a legal theory which says that there are no sovereigns on Earth, only ethereal ones.

I don’t mean to say that I think that Christian law schools teach Old Testament law. What I think is that Christian law schools stem from an intellectual milieu which holds that everything different about American law (or Canadian law) and Biblical law is an aberration. This is the problem. This is why you will never get good results from such a university.

Corporations aren’t passengers!: Citizens United and corporate ontology

January 7, 2013

Cute story out of California: getting his wish at last, a California man is pulled over with “corporation papers” in his passengers’ seat in the carpool lane. Insisting to the arresting officer that, on the logic of the infamous Citizens’ United case, the corporation is a person and a passenger, he offers himself as a (doomed) test case for the opposition to Citizens.

I say doomed for a few reasons:

  • The Supreme Court has not changed in any relevant way since Citizens was decided (one Democratic appointee, Stevens, has since been replaced by Kagan),
  • Citizens has been upheld against significantly more plausible challenges than this, and so is thoroughly embedded in the fabric of American jurisprdence,
  • Citizens itself follows a long line of Supreme Court decisions chipping away at the power of the government to regulate political speech by corporate entities, unions, and interest groups, and so is not itself even the original problem-case anyway.

I think that we have to accept the fact that Citizens is here to stay. The Supreme Court has decided that it is impermissible, on constitutional grounds, for the government to limit the ability of private interest groups to use money to influence elections.

You should read the text of Citizens. It’s a fascinating case, decently argued. And you’ll notice that phrases like “corporations are people” are entirely absent from the opinion. That’s because Citizens does not rely on the assertion that corporations are people, or on any pseudonym thereof. Rather, the case asserts that it is not only human persons that are eligible for constitutional protections, that corporations, unions, and interest groups are some of the non-human persons eligible for those protections, that those protections ought to include participation in political discourse, and that unlimited cash contributions from undisclosed sources is an essential component of such entities’ participation in political discourse.

Each element of the logical progression seems reasonable up until the last one. Certainly, it is not only humans that are protected by the Constitution – churches, political parties, protest marches, two people co-signing a letter to the president, none of which is a human person, are all obviously protected by the Constitution. That corporations are among those entities protected by the Constitution is an ancient component of Constitutional jurisprudence: while the Supreme Court has sometime drawn a very marginal distinction between “personal speech” and “commercial speech,” the latter of which might be something like advertising, both are said to flow from the First Amendment, and the difference between them is merely a matter of degree (for example, the state can almost never punish you for lying unless your lie hurts someone, but it can  punish advertisers who lie before anyone is actually hurt by the law). And I am certain that, if any rights at all are to be protected by the Constitution, speech is way up there, and political speech is the most important kind of speech – it is the kind of speech the Framers had most clearly in mind when drafting the protection.

But it is the final element that befuddled commentators and academics the most. Rather than forbid the government from regulating the content of political advertising, the Supreme Court essentially forbade the government from regulating the dollar amount of political advertising. They even created an amazingly thick wall of privacy for private interest groups, PACs, and “Super-PACs:” they don’t have to disclose the sources or the specific outflows of their income… but you and I sure have to! You and I are forbidden from omitting our revenue sources from our tax returns (unless you assert your 5th Amendment right not to disclose as such, but hey, good luck with the audit afterwards), but a PAC is not. A PAC isn’t a person – according to the Supreme Court, it deserves more privacy than a person does! Outrageous!

But it kind of makes sense when you think about it.

I’ve already acknowledged both that the entities included under protections for political speech do not include just human persons and that some of the protected entities are interest groups. The point of attachment is between the Constitution and the entity’s speech – not between the Constitution and the entity, and it’s a whole additional degree of separation between the Constitution and contributors to PACs qua contributors to PACs. If the Constitution’s protections attach to the speech itself, that may also include a certain privacy right (and the Supreme Court has spent a century building on the Constitution’s implicit rights to privacy granted to entities under its ambit, including businesses). Just as individuals do not have a right to total anonymity, neither do PACs, which is why Citizens preserved the government’s right to compel PACs to disclose their responsibility for political advertisements, but not the sources that made the advertising possible – exactly as individuals, even though they have no total anonymity rights, are certainly not required to disclose the sources of their political speech. When you make political speech, you aren’t required to disclose what books, what media or culture, what political parties or advertisements influence your speech. You’re only required to attach your name to your vote at the ballot box, not your political influences. And so it is with PACs.

So it makes sense. But is it correct?

PACs aren’t people. I know that, you know that, and the Supreme Court doesn’t disagree. PACs are created on paper and operate on paper – but a PAC is not just paper, and neither is a corporation. The gentleman mentioned in the news article that opened this post says he has “corporate papers” in his front seat. Lets assume he has every piece of paper associated with some corporation – every filing document, every ’33 Act disclosure, every piece of stock, every minute from every board meeting, everything, and assume there’s no office, no product, no cash, no bank account, nothing but a CEO (the gentleman in question) in the driver’s seat and a stack of papers in the passenger’s. Are there two entities in that car sufficiently similar to each other to require them to have roughly similar rights, with a tilt towards greater privacy rights for the other?

The human person is a physically contiguous entity. It is a brain supported by various fleshy bits. It undergoes physical and physiological change. It turns 18, it dies, it gets sick. Corporations (or interest groups, unions, PACs, etc.), however, are not physically contiguous entities. A corporation is not its offices, it is not its paperwork. Corporate filing documents are descriptions of an abstraction. An incorporation statement is a recognition of the corporate entity, not the entity itself. There is no corporate entity anywhere in time or space, there is only an aggregate of mutually-interacting pieces of paper. Sometimes corporations have offices and employees, but no office is a corporation, nor is any employee or any person at all. The corporation is a conduit of market activity.

Like persons, corporations have tax liabilities, tort liabilities, reputations, places of birth, profits and losses, parents and children, and, as expressed by their boards or officers, they have political agendas. But they do not have bodies. They cannot be passengers in cars. They are ontologically radically distinct from humans – which is completely irrelevant to the question of their participation in political speech per the analysis above.

So no, when a man and his corporate papers go for a ride, there are not two similar entities sharing a car. There is only one entity, the human person driving it, because the corporate papers in his passenger seat are not themselves an entity. The corporation is much more than its paperwork. That is why the California court in this case, consistent with the rules laid down in Citizens, could reasonably say that a person riding with his corporate papers rides alone in a carpool-only lane even though corporations are “people” insofar as “person” in that specific context means nothing more than “an entity eligible for certain limited Constitutional protections.”

Is Citizens United decided rightfully? Four members of the Supreme Court, each of whom is significantly smarter than I am, think not. The majority of Americans think not. Frankly, I think not. I think that the Supreme Court exaggerated the similarity between human persons and corporate entities in a way that has proven detrimental to the very core of the democratic process. But not because PACs shouldn’t have speech rights. It is their privacy rights that bother me.

Returning to the analysis above, humans do not need to disclose the influences on their political speech, and neither do PACs. But to infer the latter’s privacy rights by analogy to the former falls prey to the very same analytic flaw that I am trying to combat, which is the popular misunderstanding that Citizens requires that “corporations are people.” Corporations are not people and that is beyond serious dispute. That is why I worry about selectively analogizing them to persons. The privacy right created by Citizens is created by analogy to human persons’ privacy rights, but the entire strength of Citizens rests completely on a discontinuity between humans and corporations, that the Constitution does not treat corporations as human persons, only that the Constitution’s ambit is broader than human persons in the first place.

Citizens makes I think a perfectly acceptable case that non-human person entities should be protected where political speech is concerned. The case that it does not make nearly as effectively, as is reflected in the considerably more vigorous dissent on this point than on the “personhood” or “person-like” point, is that non-human person entities should be protected where privacy is concerned. Sensible Constitutional jurisprudence should begin not by trying to throw as many human protections onto corporations as possible, but by completely separating humans from corporations and seeing which Constitutional protections attach to humans (certainly all of them) and which attach to corporations (only the most essential ones, and political speech is essential).

Creationism is dead. Long live creationism!

September 4, 2012

Bill Nye the Science Guy has somehow made headlines this week just by articulating the scientific consensus on the laughable hypothesis that the 6,000-year old Earth and all of the life on it was created in its present form by an invisible wizard in the sky. The tragicomic retorts coming from the creationist crowd, specifically the dunce-hatted Ken Ham, are not just scientifically inaccurate, they’re also contrary to the relentless barrage of legal precedent dealing with the teaching of nonsense in public schools. Here I will provide a primer on just why it is that creationism has lost virtually every legal battle it has ever fought. This primer will be brief, because the case against creationism is, at this point in the case law with the kinds of precedents that have been put in place over the last couple of decades, practically open and shut.

The National Center for Science Education, a think-tank and advocacy group dedicated to protecting standards of excellence in American science classrooms, has a helpful list of ten of the biggest cases in the field. The actual cases are fairly repetitive: laws against teaching evolution, laws targeting evolution for exaggerated criticism, and laws promoting the teaching of creationism share in a broad family of legal flaws. But the most interesting of the cases is the most recent on the list, the famous Kitzmiller v. Dover case, since it provides both a powerful summary of all of the past precedent against creationism, and most clearly articulates into precedent the relatively recent stricture that, legally speaking, creationism is not science.

This point may seem obvious to anyone with even a pedestrian understanding of science, but as a matter of law, it’s an essential part of the following chain of argumentation:

  1. A law must have a secular purpose, must not needlessly advance one religion or religious perspective over another, and it must not excessively entangle the government with religion. (The “Lemon Test,” a controversial but time-tested First Amendment rubric for matters of religion.)
  2. If a law targeting science education has no merits whatsoever for the advancement of science education, it has no secular purpose. (This was the Dover court’s contribution to precedent.)
  3. If a law targeting science education promotes a single interpretation of Christian theology to the exclusion of all other perspectives for no scientific reason, it needlessly advances one religion over another.
  4. If a law requires the government to define creationism and then install monitoring controls to make sure that teachers are teaching the “correct” kind of creationism, then the state is entangled deeply with religion since it must define and then enforce a “correct” interpretation of creationism.

All of this falls apart if creationism is found to be legally scientific. Assuming for argument’s sake that creationism is treated as good science, a law promoting its teaching would have the secular purpose of making science lessons just more scientific by including one more scientific factoid, namely creationism. The advancement of Christian creationism over all other religious hypotheses wouldn’t be needless, because the Christian version would be the only one to date found to be scientific. And the monitoring controls installed to enforce the teaching of creationism wouldn’t be “excessively” entangling because they would be of the same sort we have to use in any science standards, were creationism added to the canon of standard science.

That is why, in my estimation, the linchpin of the legal case against creationism is that creationism is unscientific. None of its religious implications are as Constitutionally troubling if it turns out that creationism is scientifically valid because teaching scientifically valid things in science class, regardless of their peripheral implications, is the core function of science classes.

But thanks to the Dover precedent, the nail is in the coffin: creationism has been beaten back in its every assault on standards for science education. So why does it persist? The reasons are almost certainly cynical politics: evangelical voters eat that stuff right up, and the voter gets what the voter wants. To that end, I’d like to advertise the following warning to every single school board in America considering revising its science standards down to the lowest common denominator:

Dear school board member, state senator, or school administrator planning to sneak creationism into a science classroom,

It has come to my attention that you are about to blunder your way into another major legal defeat for your medieval worldview. As a gesture of good faith, I would like to tell you what will happen if your bill gets passed:

  1. Your school system will become an international laughingstock overnight.
  2. You will get sued.
  3. You will flush away six figures fighting a legal battle, even if the insincere buffoons defending you promise to do it on a volunteer basis.
  4. You will lose.

I urge you to keep all these points in mind. I urge you to introspect deeply on how much you value your job, the jobs of the teachers you employ, and the academic and employment futures of the students who will be victims of your cruel imposition of nonsense.

Your pal,
skepticatlaw

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.

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.