Establishment Clause

Shredding the Constitution in North Carolina

North Carolina legislators introduce a resolution declaring that the state can establish a religion and that federal courts can't declare laws unconstitutional.
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Don’t Forget Who John Roberts Is

Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.

A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.

Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.

Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:

Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.

With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.

Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.

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PFAW's Peter Montgomery Discusses the First Amendment, Citizens United and David Barton

Yesterday, PFAW’s Peter Montgomery appeared on New York’s WVOX Radio, joining The Advocates host Richard Garfunkel to discuss the American values reflected in the First Amendment. With a particular focus on the Establishment Clause and freedom of speech, Peter talked about some of the threats against the Constitution being launched by the Religious Right—including the effort by sham historian David Barton to chip away at the separation of church and state by baselessly implying that the Founding Fathers imagined America as a Christian Nation. Peter also discussed the implications of Supreme Court’s decision in Citizen’s United, which opened the floodgates for a new outpouring of secret money in the political process.

You can listen to the full interview here:

 

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Roberts Court Leaves State’s Church/State Money Laundering Scheme Intact

A closely divided Supreme Court issued a seriously flawed decision today in Arizona Christian Tuition v. Winn, using constitutional sleight of hand to get around the Establishment Clause's prohibition against the use of public funds for religious purposes and to frustrate Americans' ability to go to court when the constitutional guarantee of church-state separation is violated.

Here's the background to the case, which involves the state of Arizona's program to support religious schools.

States are constitutionally prohibited from directly supporting religious education. So Arizona figured out a way to try to get around that inconvenient First Amendment by setting up a system where that money goes to the religious organization before it gets to the treasury.

Arizona has a program where taxpayers get dollar-for-dollar tax credits for money they give to "school tuition organizations" (STOs), nonprofit organizations that award private school scholarships to children. Many of the STO awards actually require parents to send their children to religious schools as a condition of receipt.

So an Arizonan can take a certain amount of money that he owes in taxes and instead give it to a religious STO to pay for someone's religious education. As Justice Kagan said during oral arguments, Arizona established the program so STOs, acting as state intermediaries, could "make distinctions that the state itself cannot make."

Essentially, the state has set up a money laundering scheme to get around the Establishment Clause.

However, before the Court could address the program's constitutionality, it first had to determine if the taxpayer plaintiffs have standing to sue. The Constitution prohibits federal courts from hearing a case unless the plaintiff has a personal stake in the outcome. Simply being a taxpayer generally does not give you such a personal stake. However, in the Flast v. Cohen decision of 1968, the Supreme Court recognized that federal taxpayers do have such a stake when they challenge Congressional spending.

The Roberts Court today ignored common sense and the reasoning of Flast and concluded that Arizona state taxpayers don't have standing to bring this case to federal court. As they did in the 2007 Hein v. Freedom From Religion Foundation case, the five conservatives acted to prevent courts from enforcing the Establishment Clause of the First Amendment.

According to the Roberts Court, there is no government spending here to contest. Instead, it is simply a series of independent spending decisions made by private citizens who are spending their own money, not the government's.

This is constitutional sleight of hand at its worst, which Justice Kagan pointed out in dissent. As she noted, the majority is making an arbitrary distinction between cash grants and targeted tax breaks for the purposes of standing: Either way, the government has financed religious activity, so either way, taxpayers should be able to challenge the subsidy.

Since there are times when no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion, the majority opinion "will diminish the Establishment Clause's force and meaning." The dissent continued:

"The Court opinion thus offers a roadmap – more truly, just a one-step instruction – to any government that wishes to insulate its financing of religious activity from legal challenge. Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts."

It is a good day for the religious right, and a bad one for the United States Constitution and the rule of law.

PFAW

Justice Scalia Teaches at Michele Bachmann's Constitution School

People For's president, Michael Keegan, has a piece it the Huffington Post today on Justice Antonin Scalia's visit to Rep. Michele Bachmann's Constitution class:

Yesterday, Supreme Court Justice Antonin Scalia traveled to the Capitol to teach a class about the Constitution to members of Congress, led by controversial Tea Party caucus chairwoman Michele Bachmann. Justice Scalia's participation in Bachmann's Constitution school has prompted a heated debate about the proper relationship between Supreme Court justices and political leaders. But the real debate that should be raging is not about judicial ethics, but about the dubious vision of the Constitution that Scalia and leaders of the Tea Party will be discussing.

As Jonathan Turley pointed out in the Washington Post this weekend, while Supreme Court Justices across the ideological spectrum have taken on increasingly prominent public roles, Scalia has become a true "celebrity justice." But Scalia's pugnacious celebrity is in service of a distorted and bizarre reinterpretation of the Constitution championed by the Tea Party movement.

Although the Tea Party seeks to wrap the Constitutional founding in religious doctrine and intention, this view conveniently ignores the Establishment Clause, the clause forbidding religious tests for public office, and the fact that neither the Bible nor God is mentioned in the Constitution's text. Meanwhile, the Tea Party's Constitution offers very few of the hard-won protections ensuring equal rights and liberties for all Americans, and all but eliminates the power of government to protect and empower its citizens in interstate commerce. Tea Party candidates across America in 2010 also called for repeal of the 16th Amendment (making federal income taxation possible), the 17th Amendment (providing for direct popular election of U.S. Senators), and parts of the 14th Amendment.

Bachmann's Constitution classes are not so much an introduction to the founding documents, but to a new interpretation of the Constitution that mirrors the Tea Party's radical political agenda.

Read the whole thing here.

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First Monday in October

Today, as the Supreme Court opens its new term, the major news concerns a decision from last term: the solid rebuke of Citizens United by a bipartisan group of more than 50 legal scholars and public officials. The impact of that decision is poisoning election campaigns around the country and, through the Congress that will be elected as a result, will doubtless impact the lives of every American.

This term, the Court will be deciding at least one new corporate personhood case, as well as other cases affecting our most important rights, including freedom of speech, church-state separation, and due process. Some of the ones we'll be looking at:

Corporate Personhood & Privacy: AT&T v. FCC. The Freedom of Information Act (FOIA) generally requires federal agencies to disclose records to the public upon request. There are numerous exceptions, such as records or information compiled for law enforcement purposes whose disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy." The Supreme Court will decide if "personal privacy" applies to corporations, as well as to people.

Free Speech: Snyder v. Phelps. Fred Phelps and his fellow fanatics from the Westboro Baptist Church are infamous for picketing the funerals of military personnel with messages such as "God Hates Fags." According to Phelps, the deaths of U.S. servicemembers are God's punishment for the nation's tolerance of homosexuality. The Supreme Court will determine whether Phelps' funeral-picketing activities are protected by the First Amendment. The case will be argued Wednesday.

Free Speech: Schwarzenegger v. Video Software Dealers Association. The Supreme Court will address whether a California law restricting the sale of violent video games to minors violates the free speech protections of the First Amendment. California argues that states can restrict minors' access to violent material just as they can with sexual material. During oral arguments in November, we may get a sense as to whether the Supreme Court agrees.

Church-State Separation: Arizona Christian Tuition v. Winn. Arizona has a program that gives parents tax credits for tuition at private schools. Most parents use these credits toward tuition at religious schools. A group of taxpayers sued, arguing that this violates the Establishment Clause of the First Amendment. Before the Supreme Court can decide that issue, it must first determine if the plaintiffs have standing to sue. In 2007, the Roberts Court limited the circumstances in which taxpayers can challenge government expenditures that violate the Establishment Clause, and they may do so again in this case.

State Secrets Privilege: General Dynamics v. U.S. and Boeing v. U.S. These cases are actually not about the most infamous uses of the states secret privilege, which notoriously has been used to shut down lawsuits against the government alleging U.S. complicity in torture and other illegal activities. This time, it's the federal government that has initiated the lawsuit, which raises interesting Due Process issues. These consolidated cases address whether the United States can sue two defense contractors for failing to fulfill their contractual obligations, while at the same time using the state secrets privilege to prevent the companies from presenting a defense.

Employment of Immigrants: Chamber of Commerce of the United States v. Whiting. In 2007, Arizona passed a law targeting employers who hire undocumented immigrants by revoking their licenses to operate in the state. The state law also requires employers to participate in a federal electronic employment verification system that federal law specifically makes voluntary. The Supreme Court will decide whether federal immigration legislation preempts Arizona's laws.

Preemption - Right to Sue Drug Manufacturers: Bruesewitz v. Wyeth. The federal Vaccine Act preempts certain design defect lawsuits in state court against child vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." The Bruesewitz family argues that their lawsuit isn't preempted because the side effects were not unavoidable: A safer, alternative vaccine was available. The Supreme Court will decide if the Vaccine Act preempts the family's suit.

Preemption - Right to Sue Car Manufacturers: Williamson v. Mazda. An accident victim sued Mazda in state court for negligently choosing to install a lap-only seatbelt in the back center seat instead of a safer lap/shoulder belt. However, federal car safety regulations at the time specifically allowed lap-only seatbelts. The Supreme Court will decide if Congress intended the federal safety regulations to preempt such state lawsuits.

PFAW

Church, State, Land Swaps, and the Supreme Court

Today, the Supreme Court is hearing oral argument in the case of Salazar v. Buono, a case involving the display of a cross on top of Sunrise Rock in the Mojave National Preserve, which is federal property. A former employee of the Preserve sued in federal court challenging the legality of the display, arguing that the religious symbol violated the Establishment Clause of the First Amendment.  The district court agreed and ordered that the display be taken down.  So far, so good.

But in order to sidestep the ruling, Congress swapped Sunrise Rock—but none of the land around it—with a private party who agreed to maintain the cross.  Buono asked the Court to enforce its order prohibiting the display of the cross and also asked the court to prohibit the land swap.  The court agreed as to both and on appeal to the 9th Circuit, the district court’s order was upheld.

People For the American Way Foundation joined a brief filed by Americans United for the Separation of Church and State and other religious and secular non-profits on behalf of Buono to point out that objections to such religious displays on public land are more than the just general grievances.  Rather, the effects of an unconstitutional government display of religion inflict real and significant harm that cannot be easily ignored. 

Government-sponsored religious symbols are potent forms of speech that can have real, palpable effects on people who are subjected to them. The harm from them is not that they evoke mere distaste, displeasure, or even disgust. It is that they deprive citizens of the use and enjoyment of public lands, because using a public facility where the government has chosen to erect a monument to one faith stigmatizes nonadherents as second-class citizens, while demeaning the faith of adherents by coopting what is sacred.

Also, these harmful effects cannot be fixed by a contractual land transfer of a particular parcel of land, particularly when the parcel is entirely enclosed within a federal preserve and where the government has taken no steps to disassociate itself from the display[].  Nothing was done at all to make it clear that the display is no longer on government land.  As such, the transfer cannot be seen as anything other than a cheap strategy designed solely to preserve the display of the cross.  Allowing a scheme like that to cure the unconstitutionality of a government act wouldn’t correct the wrong—it would perpetuate it.

 

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Rep. Chris Smith Thinks You Don’t Have Any Values

At the RNC this week, Representative Chris Smith of New Jersey declared that America’s schools and universities have become “bastions of moral relativism,” and as a remedy for this, “Our students must find the God of the Bible and Biblical values in the classroom, on the campus.” Setting aside for a moment the establishment clause of the First Amendment (which I would encourage Congressman Smith to peruse) this is a perfect example of the Religious Right’s conception of values. Namely: there are no values but our own.

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Another Courthouse Door Closed to Religious Liberty Plaintiffs

One of the Supreme Court's disturbing 5-4 decisions last term — Hein v. Freedom From Religion Foundation — is already coming home to roost in the lower courts. On October 30, 2007, relying on Justice Alito's purality decision in Hein, a sharply divided three-judge panel of the 7th Circuit ruled, 2-1, in Hinrichs v. Bosma that taxpayers in Indiana do not have standing to challenge the practice of the state House of Representatives of opening its sessions with a sectarian (typically Christian) prayer.

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