Holy Hullabaloos, The Blog

Hullabalooza Continues over at On Faith

I have a post up this afternoon on the Newsweek/Washington Post blog about religion called "On Faith."  It's about school prayer, Senate prayer, and how they are not the same.  There's also a link to an excerpt from HH. 

Post on Salazar v. Buono up on Huffington Post (Hullabalooza Kickoff)

As part of what I like to think of as the "Hullabalooza" blog tour, which may or may not include any stops other than this one (I think it will, but I'm not positive), I have a post up at Huffington today about the upcoming church/state hullabaloo in the Mohave National Preserve. 

I don't think they posted my picture of the weird monument surrounded by fences and signs in La Crosse, Wisconsin, so here it is, if you're interested (click for bigger version):

  

Likely tomorrow I'll have a piece up on The Morning News about the four funny books nominated for this year's Thurber Prize in American Humor.

Cape Cod Hullabaloo: A Prayer Parking Space?

As a couple of local Boston area papers have reported, the board of selectmen in the town of Falmouth, Massachusetts, recently voted to allow one parking space at the Old Silver Beach to be used from 11 a.m. to 3 p.m. each day by a group of local churches.  The churches can set up shop in the parking space and talk to people who come and talk to them first, but the churches are not allowed to proselytize to people who just want to come and get some sun and surf. 

Understandably, this decision has raised some concern that the town has violated the First Amendment's Establishment Clause, which prohibits the government from making any law "respecting an establishment of religion."  This is the part of the Constitution that typically people mean when they talk about "separation of church and state."  Well, the use of the prayer parking space, without more, does not itself violate the First Amendment.  It's weird--maybe even, as we like to say in Boston, wicked weird--but not unconsitutional.  What would be unconstitutional, however, would be if some other religious group--say a Jewish group or a Buddhist group or a Satanist group--asked the town if it could also set up shop in the parking lot, and the town said no. 

That's because, by opening up the parking space to private individuals to engage in speech (religious speech, in this case, but still speech), the town has created what the Supreme Court has termed a "limited public forum" for speech, which is what happens when the government opens up a piece of government property not usually used for speech by the public (not, in other words, a public park or downtown street corner) and lets people use the property for speech.  Although the Supreme Court's so-called "public forum doctrine" is a little fuzzy (well, a lot fuzzy, actually), the basic idea is that if the government opens up one of these limited public forums, it can maybe limit access to the forum on the basis of what subject matter someone wants to speak about, but not on the basis of the viewpoint of the speaker.

What this means is that maybe the town could say no to some group that wanted to speak about health care or sports or sex or potatoes or something--because those topics are on a different subject matter than religion--but it cannot say no to any group that wants to speak on or about religion from a different viewpoint than the groups who have already been allowed to speak.  So, if, for example, I wanted to use the space to talk about why I am an atheist and to espouse atheist philosophy, and I asked the Falmouth selectmen if I could have access to the space, and they said no, I would have a strong case that my first amendment rights had been violated.  Indeed, if I had more time and didn't have to start working on my next book and the traffic to and from the Cape weren't so incredibly awful, I might actually ask Falmouth for access to the space just to see what would happen. 

To be sure, the town wouldn't necessarily have to give me access to the same exact parking space at the exact same time as the churches.  The town could open up another parking space for me instead.  One for the Christians, one for the Jews, one for the Satanists, and one for the atheists.  Boy, that would be a fun trip to the beach!  Or maybe, possibly, the town could slice up access to the space temporally, so that each church gets to use the space for an hour each day.  But the quality of the access would still have to be equal.  No giving the Christians the space from noon to 1 pm and the Satanists the space from 3 to 4 in the morning.

More on Utah Hullabaloo

Hi there folks.  I've been quiet here today, but I've posted some quick thoughts about the Summum case from Utah over at Religion Dispatches, a cool website devoted to, well, religion.  At some point soon I believe they will also be posting something they call "10 Questions" with me, which involves me responding to 10 questions about Holy Hullabaloos, mostly.  So, look for that.  Yay, Religion Dispatches.

Supreme Court Decides Utah Hullabaloo, Doesn't Totally Screw Up My Book

Back in November, I did a three-part series of posts on the one case involving religion that the Supreme Court considered this term (here's the first post).  The question was whether the small Utah town that had displayed a Ten Commandments monument in a public park for thirty or so years also had to accept for display a monument donated by a religious group called the Summum, which believes in mummification.  Well, yesterday, the Supreme Court decided, unanimously and unsurprisingly, that the town did not have to display the Summum's monument.  It basically found that the Ten Commandments monument is government speech rather than private speech and therefore that the government need not give the Summum a public forum for displaying their own religious viewpoint.  The opinion is here.

The best thing about the opinion is that it relied on existing principles to decide the case and made no radical change in current first amendment law regarding religion.  In other words, it didn't totally screw up my book.  One of the risks of writing a book about Supreme Court legal doctrine in an an area of law that is constantly changing is that the Court might totally change the law before the book gets published.  I was a little afraid that this might happen here.  I have a whole chapter in the book about religious monuments and the endorsement test that the Court uses to evaluate them, and although it was unlikely, it was certainly possible that the Court could have chosen to use the Summum case to totally rewrite Establishment Clause law and get rid of the endorsement test altogether and replace it with something new.  This would have made me look like a total doofie-doof.  Why, the readers and reviewers would ask, is this supposed expert in law and religion going on and on and on about a test that no longer exists? 

In other words, phew.

Amish Hullabaloo, Michigan Style

Over at Lowering the Bar, a terrific legal humor website that you should regularly be checking out, Kevin Underhill is reporting about a clash between Amish farmers in Michigan and the United States Department of Agriculture over whether the Ag Department's purported "requirement" that they (the Amish, that is) use some sort of weird electronic numerical tagging device to keep track of their cattle violates federal law.  The Amish apparently are claiming that the requirement violates their religious beliefs.  The Amish have sued in federal court.  Whether they prevail may very well turn on whether the requirement is being imposed by the federal government or the state of Michigan.  A statute called the Religious Freedom Restoration Act substantially limits the federal government's authority to impose burdens on religious belief and practice through general laws (like "everyone who owns cattle must use this weird electronic numerical tagging device to keep track of them").  The federal government can only impose such burdens if it shows that it has a compelling interest and that the law is narrowly tailored to achieve that interest.  The states, on the other hand, are not generally limited in the same way.  In this case, it would seem that the feds are arguing that the requirement that the Amish use this weird electronic numerical tagging device comes from Michigan, not them (the feds, that is).  The Amish disagree.

When I was in Wisconsin researching Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, available June 1 from Beacon Press, I was talking at one point with an Amish Bishop named Gideon Miller, and I'm pretty sure he was lamenting the same "weird electronic numerical tagging device" thing along with the lady who had introduced me to him, a non-Amish tour guide named Kathy.  If I remember correctly, their complaint was of the general libertarian-get-the-government-off-our-backs variety rather than the they-are-burdening-my-religious-beliefs-by-making-me-put-the-number-of-the-beast-on-my-cattle variety.  If it's true that the requirement does in fact burden the Amish's sincere religious beliefs, though, then I think the Amish should probably win their suit.  I'd explain why, except it would take too long and I have to go to a museum now, but it's all in the book, which, incidentally, you can preorder here.

Memo to the New President (or how to easily avoid a White House Hullabaloo)

Well, it looks like Stella is tied up with the Henderson matter and won't be able to deliver the memo on cartilaginous fishes that she owes me, so instead I'll report on something other than cartilaginous fishes.  Still, though, I want to say cartilaginous fishes one more time.  Cartilaginous fishes.

Last week, the Public Relations Office here at Boston University asked a number of professors from different fields to write a very brief (100 words or less) memorandum to President-elect Obama giving him some advice within our area of expertise.  Here is my advice:

When you take office in January, you will face a perhaps unprecedented number of complicated challenges that will call for the exercise of immense skill, intelligence, and judgment.  My advice to you, however, has nothing to do with any of these complex and intricate problems.  Instead I humbly urge you only to do one thing, and that is this:  Absolutely do not, under any circumstances, whether it be purposefully or merely accidentally, follow the lead of the Bush White House and put a picture of a Christmas tree on the invitation to the White House Hanukkah reception.  

 

Oops.

 

 

Utah Hullabaloo in the Supreme Court, Part 3

In today's concluding segment on the Pleasant Grove v. Summum case, I want to talk briefly about a collateral hullabaloo--a spinoff hullabaloo, if you will--that is both mentioned and in fact taking place on Howard Friedman's terrific Religion Clause blog, which I have previously touted as the best law and religion blog in cyberspace.

Friedman reports that the Monday before oral arguments were held in the case, a lawyer named Robert Ritter, who is the President of the Jefferson Madison Center for Religious Liberty and an author of an amicus brief in the Summum case, sent a letter to the Chief Justice, asking him to delay oral arguments "until such time as the Court publicly discloses . . . that a literal translation of the Hebrew on the tablet that Moses is holding on the Court's South Wall Frieze is opposite of the Ten Commandments. . . ."  According to Ritter's comments following Friedman's posting, the architect of the frieze, Adolph A. Weinman, was "doing an anti-Semitic artistic spoof" by placing Moses's beard over some of the Hebrew letters on the tablet, such that the actual translations of the words displayed are "Thou Shall Commit Murder!" "Thou Shall Commit Adultery!" and "Steal!" rather than their opposites.  Ritter wants the Supreme Court to acknowledge this literal translation as a "first step leading to federal judges faithfully upholding the Establishment Clause and remove the Fraternal Order of Eagles' Ten Commandments tombstones from government property in cities across the U.S. . . ."

The Supreme Court did not delay oral arguments in the case to make the requested disclosure, unsurprisingly, but the debate over the Ten Commandments has continued to rage over in the blog comments.  Ritter originally accused the American Center for Law and Justice, counsel for the town of Pleasant Grove, of failing to disclose the literal translation of the Moses freize in some unrelated case taking place in Washington state.  Ritter later apologized after Frank Manion of ACLJ pointed out that his organization had nothing to do with the Washington case and that Ritter should retract his "scurrilous" accusation (note to self: use the word "scurrilous" more). 

Ritter did nonetheless accuse ACLJ of "spewing out" misleading statements about the relationship between the Ten Commandments and U.S. law generally in documents like the ACLJ's friend of the court brief in Van Orden, which is the Supreme Court decision upholding the Ten Commandments monument on the Texas Capitol grounds in Austin.  In response, Manion quipped sarcastically: "As for our amicus brief in Van Orden, the portion you quote was penned by the brief's co-author, the late Harold Berman, Emeritus Professor of Law at Harvard Law School--a well known center for the spewing of Christian revisionist nonsense.  The brief itself was cited in the dissenting opinion of Justice John Paul Stevens--that well known spokesman for the Religious Right."

Do you see why I think this area of law is so great?

Utah Hullabaloo in the Supreme Court, Part 2

Yesterday I posted about the legal issue in Pleasant Grove v. Summum, the one case concerning religion that the Supreme Court is considering this year.  Today I want to say just a few things about the Summum religion itself.  From looking at the religion's website, it would appear that the Summum believe in a lot of different things, from pyramids to nectars to meditation to achieving a certain level of what you might call divine knowledge.  In her piece on the case in Slate, Dahlia Lithwick claims that her favorite aphorism of the Summum is that "everything vibrates."  I agree that, as aphorisms go, that is a pretty cool aphorism, although I'm not sure I agree with Lithwick when she says that "Whoever wrote that had yet to meet Justice Clarence Thomas, who spends the morning, as he does every morning of oral argument,in perfect, motionless repose."  When I was clerking at the DC Circuit in 1997, I happened upon an unattended office in the courthouse which contained a really big weird chair that had, among other things, a "Vibrate" on/off switch.  I later learned that the office I had been scrounging around in had previously been Clarence Thomas's office during the short period that he worked on the Court of Appeals.  Maybe Lithwick is wrong and the Summum are right.  Maybe everything does vibrate.

I'm pretty sure that what I like best about the Summum is that they believe in mummification and will mummify you for somewhere around $67,000 (that's a minimum amount; your mummification may vary).  I spend a lot of time thinking about my death.  As I've written elsewhere, I even like to play a game called "Deathbed" with my wife, where I pretend to be on my deathbed and tell my wife how much I love her and how glad I was to get to spend most of my life with her (my wife hates this game).  Since I'm an atheist and believe that after you die you become just one more lump of dirt in this meaningless universe, thinking about my death does not really make me happy.  To spice things up, I often wonder about what I could do to make my death more interesting, at least to think about in the thirty (fifteen? three?) years that I have left to live.  One thing I've thought about a lot is cryogenics, but the idea of waking up in the year 3010 as a frozen head usually doesn't do much for me.  But what about becoming a mummy?  How weird!  So weird that it just about might make dying worthwhile.

Well, the Summum claim that, for a pretty huge fee which I nonetheless think I could cover through my life insurance (sorry, honey--maybe you should have played "Deathbed" with me more often), they will bathe me and carefully prepare me, immerse me in some sort of something or other with specialized fluid, cover me with lanolin, wrap me with gauze, seal me into an "impermeable protective cocoon," and finish me off with "fiberglass wrappings."  I can then choose to be buried in an artistic bronze capsule which I guess is like a sarcophagus, or I can choose instead a full stainless steel burial casket, so long as the cemetery at which I'm buried is not located in some really cold place, or if it is located in a cold place, I'm buried deep enough to resist freezing.  Because if I'm going to choose mummification over cryogenics, I don't want to screw it up and end up frozen anyway.

Utah Hullabaloo in the Supreme Court, Part 1

Last week, the Supreme Court heard arguments in the one case this term that involves religion.  The case, Pleasant Grove v. Summum, arises from a hullabaloo that took place recently in a small town in Utah.  Thirty-six years ago, the town accepted a ten commandments monument from a private organization and put it up in a public park.  Five years ago, a small religious group called the Summum, which will mummify your dead body for a minimum of about $67,000 and which the always entertaining Dahlia Lithwick describes as "an existential stew of transcendental Gnosticism and particle physics," asked the town to display a monument of its "Seven Aphorisms."  The town refused, and the Summum sued.  A federal appeals court sided with the Summum, and now the case is at the nation's highest court.  The issue is whether the Utah town has violated the free speech rights of the Summum.

This week, I plan to put up a few posts about this fascinating case.  Although I'm not going to focus too much on the legal details of the case (I recommend Lithwick's piece as well as Chris Lund's legal analysis on Prawfsblawg for more information), I figure I should say a few words about it here in the first post.  To understand the case, you have to understand four basic legal principles, which are these:

1. The First Amendment's free speech clause prohibits the government from discriminating against private speech because of the speech's content or viewpoint.  In other words, it is absolutely clear that the Utah town could not say that Christians can speak in the public park but the Summum cannot.
2. On the other hand, when the government itself speaks, it can pretty much say whatever it wants.  If the government wants to put up a monument in the park, for example, that says "Donuts are Great" or "Communists are Not Altogether Correct," it can.
3. The Establishment Clause of the First Amendment, however, which prohibits the government from passing any law "respecting the establishment of religion," does provide one exception to principle #2, namely that the government may not endorse religion, which means, according to the Supreme Court, that the government may not send a message that one religion is favored and others are not, or that religion generally is favored and nonreligion is disfavored.
4. Despite the fact that the Supreme Court has repeatedly reiterated principle #3, it doesn't really believe it or consistently apply it, and in fact in many cases has basically held or suggested that speech which endorses religion doesn't actually violate the endorsement test.  This is why the government can print "In God We Trust" on our money and hold prayers at the beginning of every single day in the U.S. Senate and House of Representatives even though these practices clearly endorse religion.

The question in the Utah case is really whether the Ten Commandments monument is private speech or government speech.  If it's private speech, then the town has to let the Summum put up its monument (principle #1).  If it's government speech, then the town does not (principle #2).  My own intuition is that the Court will hold that the monument is government speech, and thus Summum will lose.  Then Summum (or maybe someone else) will bring a new lawsuit claiming that the Utah town has violated the Establishment Clause by endorsing religion (principle #3).  Summum will most likely lose that lawsuit as well (principle #4).

The real issue that this case sheds light on is principle #4.  People who support the government's right to endorse religious messages like the Ten Commandments think that it's no big deal for the government to acknowledge the fact that most people in the United States are and have historically been religious and, more specifically, Christian.  Those who disagree argue that the government should not be able to take sides on questions of religious truth.  Not only does taking sides make nonbelievers feel like outcasts, but it also creates divisiveness among religions.  Supporters of endorsement then say something like "Pshaw!  Divisiveness Shmivisiveness."  But what the Summum case shows is that indeed, state endorsement of majority religious faiths does cause conflict among religions.  That's one good reason why the Supreme Court should rethink principle #4.

Tomorrow: Mummies!