Posts Tagged ‘Establishment Clause’

Mississippi town bans fortune telling

April 7, 2011

The Meridian, MS town council has for for decades banned fortune telling, no doubt because it was such a popular place for fortune-telling types. But recently someone tried to open a business which would challenge that ban, and the town council decided to stick to their guns. The esteemed stateswoman Mary Perry explains the rationale for her decision:

“I read my Bible, too, and it talks about fortune telling and so forth,”

For those unfamiliar, the Bible is this religious text which is split into two sections. You’ve got the Old Testament and the New Testament. The Old Testament is mostly about fortune telling and the New Testament covers And So Forth.

Perry continues with her brilliant legal analysis:

“Everyone has their own opinion and can do what they want but I try to follow what is legal and within my heart, and after praying about something. I kind of go with that”

There should be some kind of mechanism which automatically removes people from office when they vote against letting people do what they want and then explain their decision to not let people do what they want by saying that people can do what they want.

Maybe she meant that everyone can do what they want as long as what they want to do is run for office to overturn this weird prohibition. Probably more likely is the possibility that she’s just puking out word salad and has no idea what the actual sentences coming out of her mouth mean.

Nobody who reads this should be allowed to vote

January 26, 2011

Let’s all listen to this nice young man explain why only “virtuous” people should be allowed to vote, if we’re even going to bother with that old voting thing anymore. If we keep letting just anybody vote, we’re all going to die of cancer. Or something.

America is not a Christian nation

June 12, 2010

First I should probably clarify what I don’t mean by the title of this post. I’m not denying that the authors of the Constitution were mostly Christian. And I’m not denying that the majority of Americans are Christian and always have been.

What I’m attacking here is the idea that our laws and government are based on “Christian values” or “Judeo-Christian heritage” or any other vacuous phrase theocrats invent. And what’s more is that it’s very easy to determine that this was the clear intention of the people who founded the country.

Anyone can dig up diary entries and letters by individuals involved in the founding of America to sell whatever kind of historical interpretation they like. And there’s no shortage of people attempting to do that on this issue. But our country isn’t based on diary entries and letters. You kind of have to wonder why, if these people were so insistent that this be a “Christian nation,” they neglected to mention that fact anywhere at all in its founding charter.

There are, however, some mentions of religion itself in the Constition. Let’s go through all of them right now. It won’t take long.

Article VII, Section II

Done in convention by the unanimous consent of the states present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven and of the independence of the United States of America the twelfth. In witness whereof We have hereunto subscribed our Names,

This is followed by the signatures of the delegates.

This one I can cover pretty quickly. The day I’m writing this is Saturday, which is named after the Roman god of agriculture. Does the fact that I call it Saturday mean that I’m a pagan? “In the year of our Lord” was, and in some ways still is, a dating convention of the time. Even “AD” is still used often when people are talking about ancient history.

The Establishment Clause

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What I like about this one in this context is that it’s so clearly against the first of the Ten Commandments. In one the order is to not have any other gods before one in particular, and the other says that you can have other gods if you want. Killing people that don’t worship one specific god is a pretty extreme version of prohibiting the free exercise of religion. I can’t even believe this needs to be pointed out.

Article VI, Section III

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Now there are religious tests for public office in a pretty informal way here in the US in that most voters will take a candidates’ religious views into consideration when voting. But whatever those views are won’t officially disqualify anyone from holding whatever public office they like. That’s what this refers to, and we know this because unfortunately Jefferson’s attempts to develop an 18th century functioning MRI which could monitor voters’ religious feelings while they cast their ballot were eventually de-funded.

Article VI, Section II and the Treaty of Tripoli, Article 11

These two tie together.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So the important thing to remember about this is that treaties signed by the US are equal to the Constitution in that they are both “supreme Law of the Land.” That’s half of this particular argument. Now even if you’re not convinced by the earlier mentions of religion in the Constitution, we’d have to ask whether or not there are anything more specific in a treaty made by the United States, since that would clarify the issue of whether or not America is a Christian nation.

The very first treaty signed under the authority of the United States was the Treaty of Tripoli.

As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.

It doesn’t get any clearer than that. It’s as if these guys are screaming from beyond their graves at Pat Robertson and similar douchenozzles that they’re wrong. But before you get all mad scientist-y and try to resurrect them for that purpose in a castle on a mountaintop during a thunderstorm, just remember that all we have to do to prove the “Christian nation” types wrong is to just go through our laws.

Government bailouts of Christianity

May 2, 2010

That’s what I think we ought to start calling these state/church separation issues. A phrase like “violation of the Establishment Clause” might interest nerds who are into constitutional law and secularism, but it’s the kind of phrase that causes everyone else’s eyes to just gloss over when spoken.

Anyway, this particular bailout comes in the form of a very weird case that goes back to 1934, when a group set up a big cross in the Mojave Desert to honor the dead from the first World War. Nobody really noticed it for a while.

The problem with this cross (besides the fact that many non-Christians died in WWI, but more on that later) is that it’s on federal land and so it amounts to a government establishment of religion, which flies in the face of the Establishment Clause of the First Amendment. Having been challenged, the government offered to sell a single acre of the surrounding land to a private organization which would then maintain the cross on “their own land.”

This is kind of the reason we have humans for judges instead of just applying the exact letter of the law in every single case like a justice-distribution machine. It’s obvious what’s happening when someone buys a single acre in the middle of a 1,500,000 acre federal nature preserve where the only thing around is a giant cross. The interested parties were just trying to get around the law by making the area immediately around the cross “private property” on paper.

So this too was challenged, it eventually reached the Supreme Court, and last week they ruled in favor of keeping the cross in the desert. The way I see it, the only way to justify this ruling would be to say that the cross was “grandfathered in.” This means that it went unchallenged for so long that any challenges to it on constitutional grounds would be invalid. But the court’s “swinger” Anthony Kennedy went even further than that by insisting that the cross is not really just a symbol of Christianity. From the Globe:

“Here,’’ [Kennedy] added, “one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.’’

This is a reiteration of an earlier and even more ridiculous exchange between Kennedy’s fellow justice Scalia and Peter Eliasberg of the ACLU on the same case:

JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.
MR. ELIASBERG: Well, my — the point of my — point here is to say that there is a reason the Jewish war veterans came in and said we don’t feel honored by this cross. This cross can’t honor us because it is a religious symbol of another religion.

I think Scalia and Kennedy and the other three who shared this opinion were trying to appeal to the popular images of national cemetaries where the war dead are buried. You’ll see lots of crosses there, but the reason for that is just because most soldiers – like most civilian Americans – happen to be Christian. If you look amongst the rows of crosses, you’ll see spotted here and there other grave markings of either some other religion or none at all. For example:

I don’t mean to ramble on about this forever, but the above image is of a gravestone where the family had to fight the government in court for their right to have a Wiccan symbol there. Now if soldiers all felt honored by the cross regardless of their religion, why do some opt out of having a cross? And why do some get lawyers to make sure they don’t have one there in the first place? And in the case of WWI, the reality of the draft and huge deployments overseas makes the possibility that none of them would have raised similar concerned if they were alive to do so an unrealistic premise. But those are the kinds of premises the right side of the Supreme Court seems to like best these days.

National Day of Prayer ruled unconstitutional

April 20, 2010

The Freedom From Religion Foundation‘s long-running case against the Bush administration for the National Day of Prayer has finally come to a kind of sort of conclusion last week when federal district Judge Barbara Crabb ruled the NDoP unconstitutional.

First, something about the FFRF. They have a certain legal strategy which is kind of controversial, even amongst freethought activists. Their strategy is basically to take every church/state separation issue very seriously and technically, and then to sue on as many of them as possible.

Some other organizations, like American Atheists, try to discourage this kind of strategy because it can lead to bad precedents. They encourage people to only take legal action when it’s clear that the case is going to come out in their favor.

So if you’re in a situation where secularism is being threatened and the legal system you would have to appeal to is stacked against you, then it would be better to wait for the political climate to change before bringing up the issue at all. Otherwise, you make an unofficial and semi-unspoken Establishment Clause violation into an official and legal Establishment Clause violation by setting a bad precedent. So there’s this discussion going on between those advocating legal action based on political tact (like American Atheists) and those advocating action based on principle (FFRF).

What this case makes clear is that we need a little of both of these strategies and to simultaneously be taking risks while understanding the probabilities of winning. Even though they may sometimes make bad precedent, and even though it’s easy to make fun of Dan Barker on the Daily Show, and maybe his debating leaves something to be desired, the FFRF also sometimes wins in court, and wins big.

There is, however, some question as to how big this victory will turn out to be. From the Associated Press:

Obama spokesman Matt Lehrich said in an e-mail to The Associated Press the president still plans to issue a proclamation for the next prayer day.

“As he did last year, President Obama intends to recognize a National Day of Prayer,” Lehrich said.

Now Pat Robertson’s American Center for Law and Justice (Get it? It’s the ACLJ, kind of like that other organization except totally different), which is defending both the Bush and Obama administrations in this case, is now appealing to a higher court. So this isn’t over yet. But, as far as I understand it, the judge’s ruling is still law while the appeal is pending.

The NDoP is scheduled for the first Thursday in May, so it is very difficult to believe that the appeals process will be over by then. So even if this ends up being overturned by a higher court, the FFRF will still have yet another lawsuit to press against the current administration for clearly acting against the judge’s ruling, as if the President were somehow above the law. It will be interesting to see how this plays out.

UPDATE: Rev. Barry Lynn of Americans United for Separation of Church and State on Fox