Tuesday, February 25, 2014

Thomas and Partial Incorporation in Van Orden

Here is an almost complete excerpt from Justice Thomas' concurring opinion in Van orden. Notice how he handles the issue of incorporation and partial incorporation:



"This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause. I have previously suggested that the Clause's text and history “resis[t] incorporation” against the States. [citations omitted] If the Establishment Clause does not restrain the States, then it has no application here, where only state action is at issue.

Even if the Clause is incorporated, or if the Free Exercise Clause limits the power of States to establish religions, see Cutter v. Wilkinson, 544 U.S. 709, 728, n. 3, 125 S.Ct. 2113, 2118, n. 3, 161 L.Ed.2d 1020 (2005) (THOMAS, J., concurring), our task would be far simpler if we returned to the original meaning of the word “establishment” than it is under the various approaches this Court now uses. The Framers understood an establishment “necessarily [to] involve actual legal coercion.” Newdow, supra, at 52, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment); Lee v. Weisman, 505 U.S. 577, 640, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SCALIA, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty ”). “In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers.” Cutter, supra, at 729, 125 S.Ct., at 2126 (THOMAS, J., concurring). And “government practices that have nothing to do with creating or maintaining ... coercive state establishments” simply do not “implicate the possible liberty interest of being *694 free from coercive state establishments.” Newdow, supra, at 53, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment).

There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.

Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the Court's current approach to such challenges. This Court's precedent elevates the trivial to the proverbial “federal case,” by making benign signs and postings subject to challenge. Yet even as it does so, the Court's precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance. Even when the Court's cases recognize that such symbols have religious meaning, they adopt an unhappy compromise that fails fully to account for either the adherent's or the nonadherent's beliefs, and provides no principled way to choose between them. Even worse, the incoherence of the Court's decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application. All told, this Court's jurisprudence leaves courts, governments, and believers and nonbelievers alike confused-an observation that is hardly new. See Newdow, supra, at 45, n. 1, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment) (collecting cases).

First, this Court's precedent permits even the slightest public recognition of religion to constitute an establishment of religion. For example, individuals frequenting a county courthouse have successfully challenged as an Establishment Clause violation a sign at the courthouse alerting the public that the building was closed for Good Friday and containing a 4-inch-high crucifix. Granzeier v. Middleton, 955 F.Supp. 741, 743, and n. 2, 746-747 (E.D.Ky.1997), aff'd on other grounds, 173 F.3d 568, 576 (C.A.6 1999). Similarly, a park ranger has claimed that a cross erected to honor World War I veterans on a rock in the Mojave Desert Preserve violated the Establishment Clause, and won. See Buono v. Norton, 212 F.Supp.2d 1202, 1204-1205, 1215-1217 (C.D.Cal.2002). If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge. Still other suits have charged that city seals containing religious symbols violate the Establishment Clause. See, e.g., Robinson v. Edmond, 68 F.3d 1226 (C.A.10 1995); Murray v. Austin, 947 F.2d 147 (C.A.5 1991); Friedman v. Board of Cty. Comm'rs of Bernalillo Cty., 781 F.2d 777 (C.A.10 1985) (en banc). In every instance, the litigants are mere “[p]assersby ... free to ignore [such symbols or signs], or even to turn their backs, just as they are free to do when they disagree with any other form of government speech.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 664, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part).

Second, in a seeming attempt to balance out its willingness to consider almost any acknowledgment of religion an establishment, in other cases Members of this Court have concluded that the term or symbol at issue has no religious meaning by virtue of its ubiquity or rote ceremonial invocation. See, e.g., id., at 630-631, 109 S.Ct. 3086 (O'CONNOR, J., concurring in part and concurring in judgment); Lynch v. Donnelly, 465 U.S. 668, 716-717, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (Brennan, J., dissenting). But words such as “God” have religious significance. For example, just last Term this Court had before it a challenge to the recitation of the Pledge of Allegiance, which includes the *696 phrase “one Nation under God.” The declaration that our country is “ ‘one Nation under God’ ” necessarily “entail[s] an affirmation that God exists.” Newdow, 542 U.S., at 48, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment). This phrase is thus anathema to those who reject God's existence and a validation of His existence to those who accept it. Telling either nonbelievers or believers that the words “under**2867 God” have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like “God” are not vulgarities for which the shock value diminishes with each successive utterance.

Even when this Court's precedents recognize the religious meaning of symbols or words, that recognition fails to respect fully religious belief or disbelief. This Court looks for the meaning to an observer of indeterminate religious affiliation who knows all the facts and circumstances surrounding a challenged display. See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O'CONNOR, J., concurring in part and concurring in judgment) (presuming that a reasonable observer is “aware of the history and context of the community and forum in which the religious display appears”). In looking to the view of this unusually informed observer, this Court inquires whether the sign or display “sends the ancillary message to ... nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’ ” Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-310, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (quoting Lynch, supra, at 688, 104 S.Ct. 1355 (O'CONNOR, J., concurring)).

This analysis is not fully satisfying to either nonadherents or adherents. For the nonadherent, who may well be more sensitive than the hypothetical “reasonable observer,” or who may not know all the facts, this test fails to capture completely the honest and deeply felt offense he takes from the government conduct. For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith. The Court's foray into religious meaning either gives insufficient weight to the views of nonadherents and adherents alike, or it provides no principled way to choose between those views. In sum, this Court's effort to assess religious meaning is fraught with futility.

Finally, the very “flexibility” of this Court's Establishment Clause precedent leaves it incapable of consistent application. See Edwards v. Aguillard, 482 U.S. 578, 640, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (SCALIA, J., dissenting) (criticizing the Lemon test's “flexibility” as “the absence of any principled rationale” (internal quotation marks omitted)). The inconsistency between the decisions the Court reaches today in this case and in McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729, 2005 WL 1498988 (2005), only compounds the confusion.

The unintelligibility of this Court's precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. See, e.g., Harris v. Zion, 927 F.2d 1401, 1425 (C.A.7 1991) (Easterbrook, J., dissenting) (“Line drawing in this area will be erratic and heavily influenced by the personal views of the judges”); post, at 2869 (BREYER, J., concurring in judgment) (“I see no test-related substitute for the exercise of legal judgment”). The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.

Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act **2868 as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court correctly*698 rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order."



Are you convinced by his reasoning? Or do you disagree? What are your thoughts?

Tuesday, February 18, 2014

University of Alabama Censors Pro-Life Student Group

Gotta love I-Phones sometimes.

Here is a link with a video of viewpoint censorship in action!

UPDATE

ADF press release:

A pro-life student group’s display will return to a hallway at the University of Alabama Thursday. The university apologized Monday to Bama Students for Life, represented by attorneys with Alliance Defending Freedom, for an official’s decision to remove the display on Feb. 6 because some people said they found it “offensive.”

The official removed the display from its place in the Ferguson Student Center without any notification to the group. After Bama Students for Life, with the help of Alliance Defending Freedom, registered a formal complaint about the incident last week, the center’s director apologized for the display’s removal and said he would allow the group to put it back up.

“Censorship is inconsistent with ‘the marketplace of ideas’ that a public university is supposed to be,” said Legal Counsel Matt Sharp. “We commend the university for its quick response to Bama Students for Life’s free speech concerns.”

The display, which featured several abortion-related facts, pictures of women who died as a result of having an abortion, and two small pictures of aborted babies, was among numerous other student group displays in a hallway of the Ferguson Student Center. The president of Bama Students for Life captured the center’s event coordinator on video claiming that university policy allows her to remove displays that have “offensive or graphic material”; however, the university’s policy pertaining to display cases mentions nothing about offensive or graphic content.

Saturday, February 15, 2014

By the Rivers of Babylon

Below is a link to my SSRN piece (a short essay) entitled "By the Waters of Babylon: Christian Libertarianism in the Age of Obama." My basic idea is that if we find ourselves exiles in Babylon (Secular America) we ought to be able to agree that a small Babylonian government is better than a large Babylon government (i.e. in Babylon, Christians should be small government libertarians). Here is the link (which allows you to download the article free of charge):



A shorter version of this paper will be published soon in The Christian Lawyer.

I am not assigning this piece, but you may find it interesting. My basic premise is that the best way to protect religious liberty, in a society that seems not to value religious liberty, is to protect liberty generally. In other words, if liberty is maximized for everyone, religious liberty will be maximized as well. Liberty for all is liberty for each one.

Thursday, February 06, 2014

Town of Greece Case--SCOTUS Oral Arguments

From Religion Clause blog:

 

Town of Greece Case Argued Before Supreme Court

The U.S. Supreme Court heard oral arguments today in Town of Greece v. Galloway.  At issue is the constitutionality of opening city council meetings with sectarian prayers. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the oral arguments.  ABA Preview has a detailed analysis of the case.

Here is a link to Marsh v. Chambers, the existing landmark case concerning legislative prayer.

The opinion of the Second Circuit in  Town of Greece  is here.

Sunday, February 02, 2014

A Right to Be Free From Religion

A few years ago, a student asked me a great question--why isn't there a right under the EC to be free from religion? The idea is that any religious expression in the public square is a deprivation of the citizens right to be free from religion.

What do the rest of you think about that?

We will talk about this again soon, but here is an excerpt of Justice Scalia's dissent in McCreary County (one of the Ten Commandment cases) in which he addresses this issue and compares the USA to France (link).

If nonreligious people should have a right to be free from religion, should religious people have a right to be free from nonreligion? How would we construct a public square that respected both of these calls for triumphalism? What would a pluralistic public square, one seeking to reflect the cultural and religious diversity of the local community, look like?