Up Ya Nose, Wid A Rubber Hose

Here is a link to Scalia's Sicilian "gesture."

Yo. Check it out.

Bushit!

Here is a post from the Volokh Conspiracy:

Profanities on Bumper Stickers:

The Atlanta Journal-Constitution reports that a motorist was ticketed for having a bumper sticker that said "I'm Tired Of All The BUSHit"; according to the police officer, the county "had an ordinance about lewd decals." (Thanks to Orin for the pointer.)

The police officer unfortunately didn't know that the state had a Supreme Court decision about lewd decals, too (though "profane decals" is probably the more sensible term here): Cunningham v. State, 400 S.E.2d 916 (1991), which struck down on First Amendment grounds an ordinance that banned affixing to a car "any sticker, decal, emblem, or other device containing profane or lewd words describing sexual acts, excretory functions, or parts of the human body." The Georgia Supreme Court in Cunningham quite sensibly held that Cohen v. California, 403 U.S. 15 (1971), which upheld Cohen's right to wear a jacket that said "Fuck the Draft," applied equally to bumper stickers; because of this, the court set aside a conviction for displaying a sticker that said "Shit Happens."

Seems to me that the DeKalb County Police Department owes someone an apology, at least.

You would think policeman's time would be better spent going after thieves and violent criminals than political bumper stickers. It's almost enough to make me want to run out and get one of those bumper stickers for my car. Almost!

Christophobia in Public Schools?

Here ia an excerpt from a Liberty Counsel press release that may be of interest:

U.S. Supreme Court May Hear Liberty Counsel Case Regarding Censorship Of A Kindergartner’s Art Poster That Contained A Picture Of Jesus

Washington, DC – The U.S. Supreme Court will decide soon whether to hear a case involving a school district’s censorship of a kindergartner’s art poster that contained a picture of Jesus. Representing Antonio Peck, the student whose poster was censored, Liberty Counsel filed a brief late yesterday with the Court.

When attending kindergarten at the Baldwinsville Elementary School in Syracuse, New York, Antonio’s teacher instructed the class to draw posters regarding their understanding of the environment. Antonio drew a poster depicting children holding hands circling the globe, people picking up garbage and recycling trash. The left side depicted Jesus with one knee to the ground and two hands stretched toward the sky, although Jesus was not named. This poster was displayed for half a day on the cafeteria wall, along with 80 other student posters, during an event where parents were invited to view their children’s artwork. But unlike the other kindergarten posters, school officials folded Antonio’s poster in half in order to censor Jesus. School officials said the poster violated “church and state” and would give the impression that the school was teaching religion, even though the poster was clearly a kindergartner’s artwork. Folding the poster made it look odd. Antonio’s name at the bottom was cut in half. When he saw his poster folded, Antonio felt ashamed in front of his classmates and his parents, because school officials told him and his parents why his poster was folded. He then assumed he did something wrong and was being punished. When school officials refused to remedy the matter, apologize or adopt a policy to prevent future censorship, Liberty Counsel filed suit.

In 2000, the federal trial court ruled that the school had the right to censor the poster because of “church and state” concerns. On March 28, 2001, a court of appeals, in a 3-0 decision, reversed the decision and sent the case back to the trial court. In 2004, the same federal trial court judge again ruled for the school. Liberty Counsel appealed, and on October 18, 2005, the Second Circuit Court of Appeals again ruled 3-0 in favor of Antonio. The Second Circuit joined the Ninth and the Eleventh Circuits in holding that public schools may not censor a student’s viewpoint on a permissible subject matter when it is responsive to a school assignment or program. The First and Tenth circuits hold that viewpoint discrimination in the curricular context may be permissible. The School District filed a Petition requesting that the Supreme Court hear the case and rule that school districts may censor religious viewpoints of students. Liberty Counsel’s Brief argues that the Second Circuit’s decision that schools may not censor religious viewpoints of students is correct. Liberty Counsel’s brief also points out that Justice Samuel Alito, while on the Third Circuit Court of Appeals, wrote that schools may not censor religious viewpoints of students when they address permissible subjects in response to class assignments or instruction.

Any thoughts?

Scalia Excerpt From Georgia v. Randolph

From Prof. Wagner's blog, Ninomania:

Justice Scalia, responding to Justice Stevens's concurrence in today's decision on consent searches, Georgia v. Randolph:

There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. The Fifth Amendment provides, for instance, that “private property” shall not “be taken for public use, without just compensation”; but it does not purport to define property rights. We have consistently held that “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ”.... This reference to changeable law presents no problem for the originalist. No one supposes that the meaning of the Constitution changes as States expand and contract property rights. If it is indeed true, therefore, that a wife in 1791 could not authorize the search of her husband’s house, the fact that current property law provides otherwise is no more troublesome for the originalist than the well established fact that a State must compensate its takings of even those property rights that did not exist at the time of the Founding....

Finally, I must express grave doubt that today’s decision deserves Justice Stevens’ celebration as part of the forward march of women’s equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out? The most common practical effect of today’s decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes—which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had in 1791.

Any thoughts?

Is It Good For the Goose Too?

"Should Men Have the Right to a "Financial Abortion"? A Biological Father Cries Sex Discrimination When Forced to Pay Child Support for an Unwanted Baby" (Link)

Excerpt:

Many men are quite angry about how little control they currently exercise over their reproductive lives. When a man decides to have consensual sexual intercourse with a woman, he risks unwanted fatherhood: If the woman conceives, it is she, and she alone, who decides whether to terminate her pregnancy. And that is true even if the woman falsely claimed that she was using birth control, that she had been told by a doctor that she could not conceive, or that if she did conceive, she intended to get an abortion.

In short, the argument goes, a woman has the ability forcibly to place her unwitting partner or ex-partner in a position he never wanted to occupy - that of a father - with all of the financial and emotional baggage that the status carries.

Should Men Have the Ability to Force Abortion? An Unpopular View

Some fathers' rights advocates feel so strongly about this reproductive inequity that they maintain that if either a man or a woman wants to terminate a pregnancy, against the wishes of the other partner, he or she should be able to do so. According to the New York Times magazine, Michael Newdow, for example, railed against "the imbalance in reproductive rights - women can choose to end a pregnancy but men can't…." Newdow then cut himself off, in order, he said, not to "alienate" the interviewer.

(As readers may recall, Newdow is the man who unsuccessfully sued to stop his biological daughter's school from having the children recite the Pledge of Allegiance. Possibly confirming Newdow's sense of how little control he exercises as a father, the Supreme Court denied Newdow standing to pursue the lawsuit, because of his status as the noncustodial parent, coupled with the Court's deference to California domestic law).

The "angry" men have a point. No? Should the law empower one sex partner (the woman) to impose parenthood on the unwilling father of her child? If women have total control over their reproductive freedom (as Roe and Casey mandates), should they not also have total responsibility for supporting the children they choose to bring into the world?

Hmmm. What are your thoughts? Should men and women have equal reproductive autonomy rights?

Too Much Diversity For Diversity Day?

Here is an excerpt from a press release of Liberty Counsel, a public interest, civil rights/civil liberties law firm:

March 22, 2006

School Decides to Cancel Diversity Day Rather than Include Viewpoint of Christians and Former Homosexuals

Viroqua, WI - Viroqua High School officials chose to cancel tomorrow's Diversity Day activities after Liberty Counsel presented legal precedent requiring inclusion of the viewpoints of Christians and former homosexuals.

The school scheduled sessions for the students that presented the viewpoints of Hmong, Jews, Muslims, Native Americans, African-Americans, homosexuals, Latinos, Buddhists, the physically disadvantaged, and the economically disadvantaged, but not Christians or former homosexuals. Diversity Day would have been held tomorrow, March 23, 2006.

After a school official stated that the viewpoints of Christians and former homosexuals would be excluded, a resident contacted Liberty Counsel on behalf of many other concerned Viroqua residents.

On March 9, Liberty Counsel sent a letter to the District Administrator, explaining that the censorship of the viewpoints of Christians and former homosexuals violated the Establishment Clause and the Fourteenth Amendment equal protection guarantee. Liberty Counsel sent another letter on March 14 to the District Administrator and Board of Education. Two days later, the District Administrator confirmed in a telephone call that Diversity Day had been cancelled.

Apparently, diversity is good so long as it is the right kind of diversity.

Any thoughts?

More On Catholic Charities Case

It is ironic that those who claim to march under the banner of tolerance are themselves so intolerant of religious liberty. Jeff Jacoby has a great column in the Boston Globe on this issue. Here is an excerpt:

Is this a sign of things to come? In the name of nondiscrimination, will more states force religious organizations to swallow their principles or go out of business? Same-sex adoption is becoming increasingly common, but it is still highly controversial. Millions of Americans would readily agree that gay and lesbian couples can make loving parents, yet insist nevertheless that kids are better off with loving parents of both sexes. That is neither a radical view nor an intolerant one, but if the kneecapping of Catholic Charities is any indication, it may soon be forbidden.

''As much as one may wish to live and let live," Harvard Law professor Mary Ann Glendon wrote in 2004, during the same-sex marriage debate in Massachusetts, ''the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance, and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination . . . Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles."

People often ask: "How does homosexual marriage and civil unions affect your marriage and your family? Why do you care enough to oppose it?" The Catholic Charities case illustrates my normal response to this question. I am opposed to gay rights/marriage laws because, as Prof. Glendon says above, once enacted they become the wedge to persecute religious institutions and religious individuals. The gay rights political agenda is designed to "usher in an era of intolerance and discrimination" directed at anyone who does not openly embrace and celebrate homosexuality.

Here is a link to the essay by Prof. Glendon quoted by Jacoby.

Zones of Tolerance

My friend, Prof. J Bud from UT, has some interesting things to say about tolerance and the modern culture wars. Consider this excerpt (from J. Budziszewski, The Revenge of Conscience (1999) at 53-54):

The bottom line is that Neutrality is no more coherent in the matter of religious tolerance than it is in tolerance of any other sort. What you can tolerate pivots on your ultimate concern. Because different ultimate concerns ordain different zones of tolerance, social consensus is possible only at the points where these zones overlap. Note well: The greater the resemblance of contending concerns, the greater the overlap of their zones of tolerance. The less the resemblance of contending concerns, the less the overlap of their zones of tolerance. Should contending concerns become sufficiently unlike, their zones of tolerance no longer intersect at all. Consensus vanishes.

This, I believe, is our current trajectory. The embattled term 'culture war' is not inflammatory; it is merely inexact. And we can expect the war to grow worse. The reason for this is that our various gods ordain not only different zones of tolerance, but different norms to regulate the dispute among themselves. True tolerance is not well tolerated. For although the God of some of the disputants ordains that they love and persuade their opponents, the idols of some of the others ordain no such thing.

By the way, J Bud's book is well worth reading while sitting on the beach at Cancun or Deltona over Spring Break.

Gay Rights vs. Religious Liberty: Catholic Charities Driven Out of Adoption Ministry in Massachusetts

Update: Here is an excellent essay on this issue written by constitutional law scholar, Dean John Garvey.

Here is an excerpt from the Boston Globe's coverage of this issue:

In a stunning turn of events, Archbishop Sean P. O'Malley and leaders of Catholic Charities of Boston announced yesterday that the agency will end its adoption work, deciding to abandon its founding mission, rather than comply with state law requiring that gays be allowed to adopt children.

The Rev. J. Bryan Hehir, president of Catholic Charities of Boston, and Jeffrey Kaneb, chairman of the board, said that after much reflection and analysis, they could not reconcile church teaching that placement of children in gay homes is ''immoral" with Massachusetts law prohibiting discrimination against gays.

''This is a difficult and sad day for Catholic Charities," Hehir said. ''We have been doing adoptions for more than 100 years."

Catholic Charities of Boston began in 1903 as an adoption agency primarily serving Catholic children left by parents who died or abandoned them.

Officials in government, social services, and gay-rights groups expressed disappointment about the decision. Catholic Charities is widely respected among adoption providers and has handled more adoptions of foster children than any other private agency in the state.

Here is a related article from the Globe. The Church is opposed to facilitating adoptions by homosexual couples because it believes this harms the child. Here is the Church's position:

But a conflict between the Catholic bishops of Massachusetts and Beacon Hill has been evolving for several decades, as state policy makers have adopted an increasingly expansive view of gay rights, starting with a nondiscrimination measure in 1989 and culminating in 2004, when Massachusetts became the only state in the nation to legalize same-sex marriage.

At the same time, the Vatican, often guided by the theologian who is now Pope Benedict XVI, became increasingly alarmed at the growing tolerance of homosexuality in the West, and in 2003 Benedict issued a doctrinal statement opposing same-sex unions and declaring that ''allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development."

I admire the Archdiocese for obeying God rather than Caesar. Even though many children will suffer as a result of losing this service, perhaps in the long run government will learn that religious liberty is at least as important as sexual autonomy. Religious organizations perform many important charitable services, and, if they are run out of states with draconian gay rights policies, those states (and the most vulnerable persons in those states) will suffer a great loss.

What do y'all think? Should gay rights laws be subject to a religious liberty exemption? Or are gay rights more important than religious liberty?

Freedom Fries Anyone?

UPDATE: Lest we be seen as being too hard on the French, how would this case come out under Smith and the Free Exercise Clause? Suppose the State of Nebraska adopts a generally applicable "no headgear" rule for driver's license photos? Do Sikhs have a free exercise right to keep their turbans on when being photgraphed for a driver's license?

What about it Marco and others? Do the Red Sox play in the eastern division of the Freedom League?


France doesn't get religious liberty. Here is a post from the ACS blog:

French Sikhs Lose Appeal, Must Remove Turbans

The French Council of State, the country's highest administrative body, has ruled that Sikhs must remove their turbans when being photographed for a driver's license. In reversing its previous decision on the matter, the body found that the no turban rule was necessary in "the interests of public security and protection of order" and not an infringement on Sikh's freedom of religion. French Sikhs have urged President Jacques Chirac to intervene on their behalf and are threatening to take the matter to the European Court of Human Rights if nothing is done to ameliorate the situation. This decision comes on the heels of a controversial French law prohibiting French school children from wearing conspicuous religious symbols in public schools, which has raised the ire of many French religious minorities.

Don't Sue, Don't Lose

Here is an excerpt from an article on today's major Supreme Court decision:

Supreme Court Sides With College Military RecruitersBy Tony MauroLegal TimesMarch 6, 2006

Rejecting the views of some of the nation’s top law schools and professors, the Supreme Court on Monday upheld the so-called Solomon Amendment, which requires universities receiving federal funds to give equal access to military recruiters on campus.

The unanimous decision was a sharp rebuke of the legal academe, many of whose members objected on First Amendment grounds to hosting military recruiters, because of the armed forces’ policies against allowing open homosexuals in their ranks.

Writing for the 8-0 Court, Chief Justice John Roberts Jr. said the academics’ arguments “trivialize” some of the Court’s First Amendment precedents while “exaggerating” others. Justice Samuel Alito Jr. did not participate in the ruling.

“This decision will force our schools to carve out an exception to our nondiscrimination policies for the military, and that is unfortunate,” said Carl Monk, executive director of the Association of American Law Schools (AALS), which has opposed discrimination in legal education on the basis of sex since 1970. But he said law schools will obey what is now “the law of the land.” Monk expressed the hope that “the day is not far off when gays and lesbians will be able to serve as military lawyers.”

Here is a link to the Court's decision.

More Foreign Law

The Religion Clause blog has this interesting post:

Anti-Evolution Litigation Hits Russia

Islam Online yesterday reported that a 15-year old Russian student, Masha Shraiber, and her father are suing to require Russian state schools to teach Creationism along with Darwin's theory of evolution. The suit, seeking a rewrite of textbooks, argues that teaching only evolution violates the freedoms of religion and conscience protected by the Russian Constitution. Plaintiffs in the case are being supported by three lawyers representing the Russian Orthodox, Muslim and Jewish communities, all of which support the teaching of Creationism.

I am definitely warming toward foreign law. Balanced treatment is constitutionally required, not constitutionally forbidden! Of course, the court hasn't ruled yet.

Notice one other thing. Notice that even this newsy post is biased in the way the headline presents the issue--this litigation is not "anti-evolution," is it? The litigation is really about ending the monopoly that evolution has been awarded in government schools. It is equal treatment, not anti-evolution. No?

Ginsburg Catches A Few zzzzzzs in Court

Link. You have got to see the hilarious artist's rendition.

I guess we should call this judicial non-activism!

Kirpans Are Kool in Kanada

The Supreme Court of Canada has ruled "that barring Montrealer Gurbaj Singh Multani from wearing his dagger-like kirpan to school violates the nation's Charter of Rights and cannot be considered a reasonable restriction on his right to freedom of religion." Here is a link to a news report of the case.

Here is a link to the SCC's opinion.

Hmmm. Maybe I should rethink my views about the citation of foreign decisions in US constitutional law opinions. Maybe Nino is wrong? Naaaaw!!

Ash Wednesday Issue

Howard Friedman posts a very interesting issue over at his Religious Liberty blog. Here is the passage:

"In Bakersfield, California, parent Nona Darling is complaining to school authorities about policies that make it difficult for children to miss school for religious holidays. Darling wanted to take her children out of school at noon on Ash Wednesday to attend services. However, the school said that if she did, the children would be given an "unexcused" absence. The Bakersfield Californian yesterday said it is not clear to what extent the school's policy, that gives excused absences for doctor's appointments, sickness, and funerals, but only in limited situations for religious observances, reflects the state's education code."

This looks like a pretty clear violation of Free Exercise under Smith, both because the policy is substantially underinclusive ( the broad exemptions for doctor's visits, sickness, and funerals--what about for weddings and varsity athletics?--appear to render the mandatory attendance policy non-generally applicable) and because it appears to contain an individualized exemption process for determining which religious observances are excused and which are not.

Any thoughts?