I recently filed a friend of the court brief in the U.S. Supreme Court on behalf of the AHA and six other nonprofits. The case – Christian Legal Society v. Martinez – seemingly pits the free speech and association rights of CLS against the right of all students at a public college to participate in officially recognized student groups.

How will the Court balance these interests? I wouldn’t be surprised if the Court split 5-4, but my guess isn’t much better than a flip of the coin.

Here’s an outline of the facts. Hastings College of the Law in San Francisco conditions its recognition of student groups on their agreeing to abide by the law school’s nondiscrimination policy. Up until 2004, CLS had agreed to abide by the policy. Then, to affiliate with the national CLS group, the CLS chapter changed its constitution to require voting members and leaders to subscribe to a Statement of Faith. That statement is interpreted by the student group as requiring it to exclude non-orthodox Christians (including heterodox Christians, atheists and Jews) and gays. As a consequence, Hastings denied CLS “recognized student organization” (“RSO”) status. This is important because RSOs have priority access to meeting spaces and communication channels, and they are eligible to apply for funds from student activity fees and to use the Hastings logo.

CLS argues that Hastings violated its expressive association rights by denying it RSO status on account of its religious viewpoints.

Here’s what I argued in AHA’s brief. First, CLS has the right to determine its own membership under the Supreme Court’s decision in Boy Scouts of America v. Dale (2000) (which held that private groups can exclude anyone they want to). However, CLS doesn’t have the right to be privileged by the state including those privileges I mentioned above that Hastings grants to RSOs.

Second, I argued that under the Supreme Court’s decision in Employment Division v. Smith (1990), Hastings’ nondiscrimination policy is permissible because it is viewpoint neutral and applicable to all student groups. The District Court based its decision in Hastings favor on this basis and the Ninth Circuit U.S. Court of Appeals affirmed for the same reason.

It’s important to note here that the District Court found that because CLS was permitted some access to Hastings facilities, its right of expressive association was not substantially burdened. It is also important to note that Hastings’ nondiscrimination policy targets “conduct” which the school may establish reasonable regulations, and not “speech” (i.e., viewpoints which it may not be censored).

And third, I argued that Hastings has a compelling interest in preventing the discrimination and stigmatization of “outsiders” and that its policy works to achieve this purpose. Simply put, it would be unreasonable to ask students to fund their own discrimination.

Oral arguments are scheduled for April 19 and a decision in the case is expected before the end of June.

I would be interested in hearing your views on the case and my arguments for upholding Hastings’ nondiscrimination policy by commenting on this blog post.

The above title is the title of a Legal Times blog that appeared on December 9 (“God” was in quotes).

The blog is about an emergency motion Mike Newdow and I filed asking the U.S. Court of Appeals for the District of Columbia Circuit to refrain from starting its session on December 15 with “God save the United States and this Honorable Court.”

That’s the date Newdow will argue on behalf of 250+ plaintiffs in Newdow v. Roberts that the infusion of religion into the presidential inaugural ceremonies — the oath administrator appending the presidential oath with “So help me God” and the invocation and benediction — violates the Constitution.

We based our motion on the issue of the appearance of justice. How can our clients expect justice when the U.S. Court of Appeals is engaging in similar religious practices?

While we lost the emergency appeal, Mike and I continue to explore alternatives to being coerced into listening to the court’s endorsement of religion.

Sometimes things aren’t what they appear to be. Such was the case of Salazar v. Buono at the Supreme Court today.

Attorneys from the ACLU, which represented Frank Buono in his challenge to a Christian cross atop a rock in the Mojave desert, Americans United for Separation of Church and State, and the AHA’s Appignani Humanist Legal Center were concerned that the Court might use this case to further restrict a person’s right to sue based on unwelcome contact with an inherently religious symbol on government property.

The good news is that the Court appears to want to sidestep this issue—thus continuing to permit such establishment clause challenges (for the present).

Instead, the Court appears poised to settle the case on the narrower issue of whether to affirm the 9th Circuit’s affirmation of an injunction ordering removal of the cross and preventing the land underneath the cross to be transferred to the Veterans of Foreign Wars under an Act of Congress.

Based on the vibrations I sensed during oral arguments and familiarity with past decisions of the Supreme Court, the outcome of the case appears to me too close to call with Justice Kennedy a swing vote, Justices Stevens, Breyer, Ginsburg and Sotomajor likely to vote to enforce the injunction ordering the cross to be removed, and Chief Justice Roberts and Justices Scalia, Thomas, and Alito voting to allow the land transfer to proceed so that the Christian cross may remain on the land.

In my opinion some justices, such as Justice Scalia, just don’t see Christian favoritism as a problem under the First Amendment. Clearly, they don’t enter through the front door, for high above it says: “Equal justice under the law.”

A few weeks ago the U.S. Court of Appeals for the Tenth Circuit held that Haskell County, Oklahoma’s display of a Ten Commandments monument on its courthouse lawn violated the Establishment Clause of the First Amendment because a “reasonable observer would find that [the facts of the case] tended to strongly reflect a government endorsement of religion.” So far, so good.

The 48-page decision is consistent with the Supreme Court’s jurisprudence relating to display of permanent religious monuments on public property.

As a church-state separation fanatic, I take issue with the Court’s opinion that “The Ten Commandments have a secular significance that government may acknowledge.” Unfortunately, the appellate court relied on Chief Justice Rehnquist’s plurality opinion in Van Orden v. Perry (2005) in which the “secular” purposes given by Rehnquist were as bogus then as they are now.

I would have preferred the court to have more heavily relied on the 1980 case of Stone v. Graham, in which the Supreme Court said:

The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day.

In my humble legal opinion, the courts should declare “Commandments” monuments presumptively unconstitutional as their public display serves absolutely no legitimate secular purpose.

At least we can be thankful that the Tenth Circuit knocked out one more Commandments monument.

An appeals court today, in part relying on the 2007 Supreme Court ruling in Morse v. Frederick (the “BONG HITS 4 JESUS” case), held that a high school can discipline a student for disobeying school policy. The student’s crime: substituting an unapproved religious valedictory address for an approved secular speech.

A couple of years ago I blogged (elsewhere) that a Christian legal group supported the right of Joseph Frederick (the student in the “Bong Hits” case) to display his banner free from school discipline because, as they put it, their group “ultimately wants to protect free speech rights of Christian students to be able to pass out religious literature and wear Christian-themed clothing.”

That they saw Frederick’s banner as genuinely Christian is rather naive, but what’s sweet now is that this latest student is having to play by the same rules.

The U.S. Court of Appeals for the Tenth Circuit, in taking notice of “Bong Hits,” affirmed a lower court ruling that the principal of Lewis Palmer High School, who forced student Erica Corder to apologize for including unauthorized religious material in her graduation speech, did not violate her constitutional rights.

This is the speech Erica Corder gave as one of fifteen
class valedictorians at her 2006 graduation:

Throughout these lessons our teachers, parents, and let’s not forget our peers have supported and encouraged us along the way. Thank you all for the past four amazing years. Because of your love and devotion to our success, we have all learned how to endure change and remain strong individuals. We are all capable of standing firm and expressing our own beliefs, which is why I need to tell you about someone who loves you more than you could ever imagine. He died for you on a cross over 2,000 years ago, yet was resurrected and is living today in heaven. His name is Jesus Christ. If you don’t already know Him personally I encourage you to find out more about the sacrifice He made for you so that you now have the opportunity to live in eternity with Him. And we also encourage you, now that we are all ready to encounter the biggest change in our lives thus far, the transition from childhood to adulthood, to leave Lewis-Palmer with confidence and integrity. Congratulations class of 2006.

The full decision in Corder v. Lewis Palmer School District No. 38 is available here.

Bottom line, the old Tinker v. Des Moines Indep. School Dist. (1969) rule that student speech is OK unless it is disruptive is OUT. Alternatively said, there are so many exceptions that it’s not safe for kids to rely on Tinker.

Little League, stop messing with the kids or I’m going for a home run.

Bob and son manning petition table

My son and I recently participated in our local Little League’s opening day ceremonies — my son as a player and I as a coach.

As the Little Leaguers and coaches paraded onto the field, I saw a man in a black suit and white collar. I thought my heart was going to stop beating. I hoped that there wouldn’t be a prayer given during the event. But my instinct was correct.

Not only was there an invocation, but the players, including my son, were asked to recite the Little League Pledge which begins with “I trust in God.”

I grabbed my son and we turned our back to the pitcher’s mound from which the ceremonies were being conducted. I don’t like being disrespectful, but I’ve had enough of religion being infused into secular events.

I sent the local Little League president an email requesting that future League activities not include an invocation, pledge or prayer (and also not so subtly mentioned that I am co-counsel in a lawsuit challenging the infusion of religion in presidential inaugural ceremonies).

Within a day or two, I received a reply email from the Little League’s national vice president of communications telling me that the their pledge was “historical” (it was written in 1954, the same year “under God” was added to the Pledge of Allegiance) and that the League would not change its policies and practices.

Historical as in treating African-Americans and women as chattel? Is wrong made right by time?

Last Saturday I started a petition drive in support of a resolution that I plan to bring before the local board in a month or two to eliminate the religious practices. (See below photo of my son and I manning the petition.)

To those who don’t understand why I am on a mission, I answer by describing the harm in the petition this way: “WHEREAS such religious practices directly interfere with Little League players free exercise of religion and their parents’ rights to teach their children beliefs of their own choosing — religious or nonreligious.” I confess, I’m a disciple of Jefferson and Madison.

This game is only in the second inning. I’ve got plans to go national with this drive after picking up some steam locally. Stay tuned.

There seems to be grade inflation going on at Americans United in terms of assessing President Obama’s first 100 days in office. They gave President Obama an A-; I’d give him a “C”. Here’s why:

First, I’m using a bottom-up approach — meaning Obama has to earn his grade rather than start with an A+ and have points deducted for missteps.

Certainly Obama has made some A-worthy moves (which I’ll omit for the sake of brevity). My problem is his infusion of religion into so many things, starting with the presidential inaugural ceremony when he added “so help me God” to the constitutional oath and prayers by Rev. Warren and Rev. Lowery. He’s made token shout outs to nonbelievers (like throwing bones without meat). Obama’s response to the Vatican’s rejection to his nominees has been pitiful. His goal to expand Bush’s faith-based initiatives is mind boggling. He’s waffled on the Freedom of Choice Act and religious discrimination in hiring. He’s appointed a religious czar (in Josh Dubois). His gratuitous acknowledgments to a god in his speeches makes me feel like an outsider.

In sum, these acts show me that President Obama is no friend of separation of church and state but, based on the (omitted) positives he’s no enemy either.

So in my grade book Obama’s at a C, and he’s got a LOT of homework to do to earn an A.

The Obama administration can’t quite seem to get its act together when it comes to separation of church and state.

During Barack Obama’s presidential campaign, we were told that he was “with us” because he had been a Constitutional Law professor (thus inferring that he supported the Jefferson-Madison interpretation of the Establishment Clause). Unfortunately, Obama has been a disappointment as savior of the original intent of the religion clauses of the Bill of Rights.

First, instead of abolishing George W. Bush’s department of religion (a.k.a. White House Office of Faith-Based and Community Initiatives) Obama renamed it the White House Office of Faith-based and Neighborhood Partnerships (OFBNP) and expanded it! Next Obama backed off his campaign pledge to end religious discrimination in hiring by OFBNP grant recipients. Instead, the White House legal counsel and the Department of Justice are reviewing this matter, which has been deemed too hot to handle for the 25-member President’s Advisory Council on Faith-Based and Neighborhood Partnerships.

Instead, the council, composed primarily of persons from the religious community, is being charged with studying fatherhood, interreligious dialogue, global poverty, economic recovery, and the environment/climate change.

Now wait a minute. The first two task forces–on fatherhood and interreligious dialogue–seem likely to promote religion. Global poverty sounds like a job for the State Department. Economic recovery is the responsibility of the Treasury and Commerce departments (and perhaps others). And the environment/climate change is a task for the Environmental Protection Agency.

Surely, none of the council members are experts in the fields of finance or science. Are these committees going to serve as shadow departments that will impart a religious spin?

My recommendation to President Obama is simple: abolish the Office of Faith-based and Neighborhood Partnerships and let religious groups compete for federal grants, applying goals-based criteria and providing services in a manner consistent with the First Amendment. What a wonderful world that would be.

The Department of Justice failed President Obama’s quest for change when Attorney General Eric Holder overruled the opinion of the lawyers in the department’s Office of Legal Counsel that granting the residents of the District of Columbia voting rights to elect a member of the House of Representatives would be unconstitutional.

Instead, the Attorney General sniffed around until he found the Solicitor General willing to say “no problem.”

Well, actually there is a big problem. It’s called the rule of law. And it just so happens that the Constitution is the supreme law of the land. (Const., art. VI, cl. 2.)

The Constitution is explicit in regards to who may vote for members to the House of Representatives: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States …” (Const., art I, sec. 2, cl. 1.) (Emphasis added.)

While it is also true that Congress is granted authority “[t]o exercise exclusive Legislation … whatsoever, over such District … as may, by Cession of particular States … become the Seat of the Government of the United States”, (Const., art. I, sec. 8, cl. 17.) under the basic rule of statutory construction that a specific provision (e.g., who may vote for a member of the House of Representatives) trumps a general provision (e.g., authority over the District of Columbia).

It’s short sighted to argue that voting rights for residents of the District would not be a constitutional violation because either voting is a fundamental right or the District is often treated as if it were a state in numerous pieces of legislation. While it is true that voting is considered a fundamental right in the United States (see Baker v. Carr, 369 U.S. 186 (1962) – establishing the principle of one person, one vote), the precise contours of that right is determined by our Constitution. Thus, for example, senators are apportioned two per state rather than allotted on the basis of population (as is the House of Representatives).

More particularly, current laws treating the District of Columbia as if it were a state involve other provisions of the congressional authority which do not limit Congress’s authority to the “states.” For example, the Constitution grants Congress the authority ‘[t]o establish Post Offices and post Roads.” (Art. I, sec. 8, cl. 7.) Under this clause, Congress can grant the District of Columbia monies to build post offices and postal roads because this clause does not limit federal funds for these purposes specifically to the states.

Don’t get me wrong. I personally believe that D.C. residents should be able to vote for members of the House and the Senate. However, I believe in the Constitution as well. Therefore, the proper way to achieve the desired goal is not through an unconstitutional act of Congress, but by (1) ceding the residential area of the District back to Maryland or (2) amending the Constitution to grant D.C. residents the right to vote for members of the House of Representatives, the Senate or both.

So that my vote is diluted, I prefer the former option over the latter. Granting the residents of D.C. two Senators would be particularly unfair (as is the current allocation of two Senators per state).

[NOTE: The views expressed in this blog represent my professional opinion, except for the last two paragraphs which also represent my personal opinion. The AHA supports current legislation granting D.C. residents one representative in the House.]

Since when do more than 270 plaintiffs enjoy losing?

Mike Newdow’s email went on to say that the dismissal order in Newdow v. Roberts “now sets us up to file an Appeal as the appellants, thus providing us with the opportunity to submit a 14,000 word Opening Brief and a 7,000 word Reply Brief in the Court of Appeals.”

On March 12, U.S. District Court Judge Reggie B. Walton dismissed our case challenging the infusion of religion into Barack Obama’s inaugural ceremony.

Judge Walton was disingenuous in his ruling that “the plaintiffs have failed to demonstrate that an injunction against any or all of the defendants could redress the harm alleged suffered by plaintiffs” while at the same time noting in a footnote that the plaintiffs had filed an amended complaint that would (in my opinion) have likely cured any defects. For example, Judge Walton could have: (1) declared the acts of Chief Justice Roberts appending “so help me God” to the constitutionally prescribed presidential oath and the Presidential Inaugural Committee for allowing sectarian prayers in the invocation and benediction to be violations of the First Amendment, (2) enjoined the federal defendants and others unnamed in future inaugurals from doing the same and (3) awarded the plaintiffs nominal damages.

Judge Walton also held that our plaintiffs lacked standing because “none of the plaintiffs in this case have standing to challenge the defendants’ actions as pled in the complaint because they have identified no concrete and particularized injury.” This, too, is disingenuous, because the District Court had in its possession over 250 sworn statements alleging injury. Again, the Judge Walton erred.

I have spent many hours researching federal cases in which the court said that a plaintiff who personally witnessed government sponsored prayer lacked standing. To no surprise, the only cases that I have found are Newdow I (Newdow v. Bush, 2001 presidential inaugural), Newdow II (Newdow v. Bush, 2005 presidential inaugural) and now Newdow III (Newdow v. Roberts, 2009 Obama inaugural). Coincidence? Conspiracy?

I have a simple answer. Newdow I, II and III were just too hot to handle.

Newdow (i.e., Newdow III), like its predecessor cases, was too hot for the District Court because, like Abington Township School District v. Schempp, Newdow it would uphold minority rights over majority rule. (Schempp, consolidated with Murray v. Curlett, is the landmark 1963 Supreme Court decision that held school sponsored Bible reading and prayer to be unconstitutional.) And you know about the uproar over little kiddies not being denied their God given right to say their prayers in school. Imagine the excruciating squawking of the megachurches if Mike Newdow and the other plaintiffs win.

As I have said elsewhere, Newdow is foundational – it would take monotheistic (Christian preferred) religion out of the executive branch (where it doesn’t belong anyway). What would be next? Congressional chaplains? “Under God” in the Pledge of Allegiance? The national motto of “In God We Trust”? Or military bands playing “God Bless America”?

The Christian Right can’t afford to lose this one and the courts know it! Or the dominoes will fall.

“Out of sight, out of mind” goes the saying.

So many may think that because the 2009 presidential inauguration is history, a lawsuit brought by Michael Newdow, 30 other individuals, and 11 organizations to prevent the infusion of religion into the ceremony is over. Not so.

Newdow and I are now working on a brief – due February 23rd – to explain to Judge Walton why he shouldn’t dismiss the suit. There are so many reasons, including (1) the plaintiffs were in fact harmed and seek a declaration from the court that their Establishment Clause, Free Exercise Clause, and Religious Freedom Restoration Act rights were violated and (2) the unconstitutional practices (the Chief Justice adding “so help me God” to the presidential oath and the sectarian prayers in the invocation and benediction) are likely to repeated in 2013, 2017, and so forth if they aren’t enjoined by the court.

While there are a number of hurdles in this case, the inability of the judge and most Americans to recognize the “harm” caused by the religious practices at the presidential inaugural ceremony is most troubling.

In truth, this is a common human shortcoming. When things are going our way, we often fail to recognize that others may be suffering. (I’m trying to be nice by not calling it tyranny of the majority.)

The following is a description by Professor Christopher C. Lund of the harm caused by legislative prayers:

A government whose legislative prayers are acceptable to one religious group but not another makes the latter group feel unwelcome, and it ends up exerting pressure on the disfavored group to change their religious ways.

See Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, page 25. This description applies equally to executive prayers (like the religious activities complained of in Newdow v. Roberts) and public school prayer cases. I encourage all Rant & Reason readers to read Professor Lund’s 56 page article for an excellent discussion of the issues.

Rather than rant on, I invite readers to express in your own words whether (and how) you felt harmed by the infusion of religion into the 2009 presidential inauguration ceremony, or not.

President-elect Obama’s picks of Rick Warren (Saddleback Church) and Joseph Lowery (SCLC) to deliver the invocation and benediction at his inauguration are most unfortunate for two reasons.

First, the selections show Obama’s disrespect for freedom of religion — namely, that government may actively endorse and promote religion — notwithstanding the fact that the Establishment Clause of the First Amendment prohibits such an entanglement.

Second, assuming that it is permissible to flagrantly disregard the Establishment Clause, then his picks are ill-advised because they are non-inclusive of humanist, freethinker, atheist, agnostic, Wiccan, Buddhist, Hindu, Islamic, etc. philosophies and religions.

Bottom line, Obama is starting off on the wrong foot. He should have “changed,” by dropping the religious invocation and benediction.

In response to the story UNC cuts Christmas trees from its libraries I was asked for my opinion about whether there is any legal problem with a library at a public university displaying a Christmas/holiday tree.

My answer was: “No, not as long as I don’t have to either put it up or take it down, or it doesn’t have religious ornaments on it.”

Strictly speaking, a tree with colorful lights, tinsel and beautiful ornaments can be legally put up in a public building any time of the year, including December. To this extent, it’s not a separation of church and state issue.

But if there is anything else on the tree or underneath it of a religious nature, then my answer is: “It all depends.”

There have been three Supreme Court decisions which collectively hold that (1) government cannot erect a display that endorses a particular religion and (2) if government permits a private party to put up a religious holiday display, it must let persons of different faiths or no faiths to put up holiday displays. (NOTE: a permit may be required and reasonable rules governing time, place and manner are permissible.)

I don’t support violence, except in self-defense. I’m appalled at terrorism. And I’ve been a civil libertarian for five decades — since picketing a segregated movie theater as a youth in the 1950s.

In this context, the Becket Fund’s ad in the New York Times in defense of Latter Day Saints is baloney to me. Yes, I am very aware that churches, under the tax code, can lobby (to a degree) on issues of importance to their faiths.

But the LDS and representatives of the Catholic Church (also a sponsor of the ad) are, in some respects, America’s version of Islamic extremists, by their attempts to impose their religious views on others. Their enormous wealth and use of religious doctrine coercively are weapons, not merely a shield.

When five Supreme Court justices, all Catholics (Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito) in the 5-4 Gonzales v. Carhart (2007) decision, side with a papal edict and deny women their reproductive rights, its time to stop kidding ourselves that religion isn’t dangerous. As the Surgeon General would warn, “religion is harmful to individual rights.”

I am equally troubled by Gordon Gaddy, president of the Interfaith Alliance, letting the signatories of the ad off so easy when he said in a press release today (Dec. 5) that: “I agree with the signers of the ad that they have every right to their opinion. ” My problem is the term “right to their opinion.” Opinion yes, but throw their considerable weight around with the purpose of denying people their rights — NO. At least not if there is any such thing as fundamental rights that should not be subject to public whim.

My point simply is this. We humanists, atheists and freethinkers are in a cultural war as is obvious from public ads or posters by the American Humanist Association (“Why believe in a god? …”), Freedom From Religion Foundation, American Atheists and others. We are fighting for more than a place at the table (i.e., equality), we are fight for fundamental rights — religious rights, gay rights, reproductive rights — you name it.

Rather than sit idly on the side, we should engage religious intolerants in the public square with our message for human rights. And then engage again and again — until the day we are free, free at last.

The inspiration behind President Eisenhower’s push to insert “under God” in the Pledge of Allegiance, Rev. George Docherty, died recently on November 27 at the age of 97.

Rev. Docherty was concerned that the Pledge without a reference to a deity could apply as well to communist Soviet Union when he gave his February 7, 1954 sermon with President Eisenhower sitting in Lincoln’s Pew at the New York Avenue Presbyterian Church. He urged that the Pledge be amended: “To omit the words ‘under God’ in the Pledge of Allegiance is to omit the definitive factor in the American way of life.” (Rev. Docherty’s obituary in the Washington Post.)

Bills were introduced in Congress the same week and Eisenhower signed into law adding “under God” to the Pledge within four months. Call that the miracle of Communism.

Now that President Eisenhower, Senator McCarthy, the Soviet Union and Rev. Docherty are gone, it’s time to restore the pledge to its pre-1954 language — as we are not now or have ever been one nation under a god or gods.

The authority of our governments flows from the people, to be used for the benefit of the people. We are not, however, so conceited to change the Pledge to read “one nation under Ourselves” even though it’s the truth.

One “change” President-elect Barack Obama is not likely to effect early in his administration is a change in the ideological tilt of the Supreme Court.

The Court is very divided – frequently voting 5-4 on major cases involving socio-religious issues. This division is reflective of the cultural war gripping the United States.

Thus while Obama’s victory is a modest coup for liberals, it is widely believed that the first three justices to retire will be Justices Stevens, Ginsburg and Souter – all in the liberal camp – and therefore, replacement opportunities are not expected to have a significant impact on the direction of the Court.

Rather than wait for a vacancy to be created by a retirement of a justice from the conservative ranks, I have embarked on a mission to lay the foundation for overruling the Court’s horrendous decision in Van Orden v. Perry (2005) which held that the display of a donated Fraternal Order of Eagles Ten Commandments tombstone on the Texas state capital grounds did not violate the Establishment Clause.

I must admit that the task appears to be overwhelming. Indeed, I must be crazy to think that that I can persuade one member of the High Court’s majority to change his position on whether permanent religious symbols on public property violate the Establishment Clause.

And so, crazy as I am, I took the first step by filing a request with the Supreme Court on November 10, 2008 asking Chief Justice John G. Roberts to postpone oral arguments in Pleasant Grove City v. Summum until the Court publicly disclosed a literal translation of the Hebrew on the tablet Moses is holding in the South Wall Frieze of the courtroom.

Not surprisingly, Chief Justice Roberts ignored my request. But I did obtain a small victory. I believe that I forced Jay Sekulow, chief counsel for the American Center for Law and Justice, and the attorney who argued the case for Pleasant Grove, to admit during Summum oral arguments that “the words on the Court’s frieze are ‘steal,’ ‘murder,’ ‘adultery’ in Hebrew” (rather than “Thou shall not steal,” thou shall not murder” and “though shall not commit adultery”). This produced a startling admission from Justice Ginsburg in reply: “Yes.” (See transcript at page 9.)

What is the significance of all of this? The justices of the Supreme Court have taken an important first step in recognizing that the Ten Commandments are not displayed in its own courtroom as is often asserted in its own decisions and the briefs of Christian Right legal centers.

Hopefully, the friend-of-the-court brief I submitted on behalf of AHA and six other secular and religious organizations in Summum plus my recent letter will ultimately have a positive impact on judiciary’s recognition of an Establishment Clause violation caused by the presence of an Eagle’s donated Ten Commandments tombstone in Pleasant Grove’s Pioneer Park.

Crazy things keep coming out of Texas (where I once lived decades ago) – the Texas pledge of “one state under God,” public school Bible courses, Religious Viewpoints Anti-discrimination Act and now, defining a fetus (or unborn child to some) as a “person” for purposes of the capital murder statute.

My real concern is not with the bonus for prosecutors — two convictions for one murder. That’s right. Under TX Penal Code 1.07(a)(26), an “‘Individual’ means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”

No, my concern is that the Texas legislature routinely drinks Christian right Kool-Aid, which can be seen from above example of its definition of individual being religious-based, not science-based.

Two weeks ago on Nov. 20, a Texas Court of Appeals affirmed the conviction of Jacob Eguia for capital
murder for causing the death of Ruby Elaine Garcia and her fetus during the same criminal transaction. Eguia was sentenced to life in prison, which was the only possible sentence since the State did not seek the death penalty.

Among other defenses, Eguia filed a motion to quash the indictment against him for causing the death of Garcia’s fetus because the Texas statute that defines an “unborn child” as a “person” for purposes of the capital murder statute is unconstitutional. In particular, he alleged that the definition violated the Establishment Clause of the First Amendment of U.S. Constitution because the definition “has the effect of endorsing religion as it is based solely upon a religious belief that life begins at conception.” (Eguia also complained of a violation of Texas’ constitution – “no preference shall ever be given by law to any religious society or mode of worship.” Tex. Const. Art I, § 6.)

In holding that the Texas law defining an “individual” did not violate either the U.S. or Texas Constitutions, the appeals court said: “A statute is not automatically rendered unconstitutional simply because it advances ideals that harmonize with religious ideals. Harris v. McRae, 448 U.S. 297, 319-20 … (noting that Judeo-Christian religions’ forbiddance of stealing does not preclude state or federal legislatures from outlawing larceny).”

The appeals court also said that Eguia also “fail[ed] to demonstrate how the statute’s principal or primary effect advances religion, or how the statute fosters excessive government entanglement with religion.”

I believe that the appeals court analogy with stealing is misplaced because, unlike stealing, the notion that life begins at conception is uniquely a religious viewpoint.

However, because I am not familiar with the trial record, it would be inappropriate for me to comment on whether or not the defendant sufficiently proved of his Establishment Clause violation claim.

Instead, I’ll close by saying that in our judicial system the deck is stacked heavily against those who claim a violation of the principle of separation of church and state and that complainants probably need two, three or four times as much evidence as they think would be sufficient. What is needed is a smoking gun (so to speak) where there is a record of a religious purpose for enacting the challenged legislation.

Minutes ago, I read a religious legal news story that read: “23-year old Aisha Ibrahim Duhulow was executed by stoning after being convicted of committing adultery — an offense to which she had confessed.”

Duhulow was burred in the ground up to her neck and her head covered with a black sack before . . . (it’s too horrible to write). This occurred yesterday, on the 27th of October, in the Somalian port city of Kismayo.

I don’t claim to know or understand Shariah law. I guess I only hear about the bad side because that’s what typically makes the news.

But I have no hesitation in saying that the above punishment is way out of line with the offense — indeed, it was barbaric — and the judge who imposed the sentence and the stoners are guilty of murder, in my book.

I’ve read some articles recently that in some non-Islamic countries Shariah law is cropping into judicial decisions involving Muslims. This, I must caution against, because Shariah law appears to lack fundamental notions of justice like equal justice under law (what happened to the man who participated in the offense) and that the punishment is commensurate with the crime (capitol punishment for sex?).

As a member of the Supreme Court bar, I know that the Court accepts only a fraction of all cases appealed to it. I also have seen the courts super accommodative of religion lately.

So even while it was no surprise that the Court declined on Monday to hear Lucero v. Texas (No. 07-1492)  — the bid of a death-row inmate to set aside a jury’s death sentence — the circumstances of the jury’s deliberation churn my stomach.

Jimmie Urbano Lurcero was convicted by a jury, who heard the jury foreman read a Bible passage aloud to the entire jury, before the panel returned the death sentence. What was the passage?

Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. … For he is God’s servant to do the good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God’s servant, an agent of wrath to bring punishment on the wrongdoer.

According to a Christian Science Monitor story, a straw poll taken before the Bible reading was 10 to 2 in favor of conviction. And at the conclusion of deliberations, the jury vote 12 to 0 in favor of death. (A unanimous verdict is necessary to impose a death sentence.)

Were the two jurors who changed their votes persuaded by the biblical passage? I don’t pretend to have a crystal ball to say absolutely that the Bible reading did Lurcero in. But as a civil liberties attorney, the decisions by the Texas trial court, Texas Court of Criminal Appeals and now the U.S. Supreme Court seem so out of touch with constitutional due process requirements — that is, the defendant’s right to a fair trial. (It also seems to me that there is an Establishment Clause problem of government endorsement of religion, but I am not aware that this issue was raised on appeal.)

In my view, and that of the 1st (Boston), 5th (New Orleans) and 11th (Atlanta) Circuits, the introduction of a Bible into jury deliberations violates the right to an impartial jury. However, the 4th (Richmond) and 9th (San Francisco) Circuits have ruled the presentation of specific Bible versus during jury deliberation does not violate the Sixth Amendment because the Bible’s teachings are a matter of common knowledge in American culture. (That’s BS.)

Why didn’t at least four Supreme Court justices vote in favor of taking this opportunity to resolve a split among the federal circuits?

My crystal ball is still cloudy (that is, I don’t know), but let me take a wild guess. Two cases involving religion in the same term is too much to handle. The Court is scheduled to hear oral arguments in Pleasant Grove City v. Summum on November 12th. (NOTE: Yours truly submitted a friend of court brief in Summum on behalf of the AHA.)

One of the issues on my radar here at the Appignani Humanist Legal Center is non-theists being required to participate in a religious drug or alcohol rehabilitation program as a condition of parole.

Thus I guess it should not have been a surprise when I got to work today and opened my email inbox.

I received two emails – one from Barry Hazle, Jr. of California and the other was a press release from his attorneys.  Both emails discuss how Hazle, 40, a computer services specialist residing in Redding, California, was required to attend and complete a 12-step drug rehabilitation program (at Empire Recovery Program) as a condition of parole following release from state prison.  As most know, such programs include references to God, acknowledgment of a higher power and prayer.

Aside from obvious problem of government sponsorship of religion, Hazle specifically requested that he be assigned to a non-religious rehab program. For his complaints, Hazle’s parole was revoked and he was returned to state prison for 125 days.

Yesterday, Hazle’s attorney filed a lawsuit in federal district court claiming that the policy of requiring parolees to participate in religious-based rehabilitation programs is an unlawful use of state funds and asks the court to prohibit such misuse of funds in the future.

My own research on this issue confirms Hazle’s attorney’s opinion that the law at the time Hazle was returned to prison (April 2007) clearly prohibited this type of conduct. This is significant because the offending state officials could lose their qualified immunity and be held personally liable for their wrongs.

I wish Hazle success in his legal effort to correct this violation of the First Amendment’s Establishment Clause.

For more information on this story, see Sacramento Bee article and Redding.com article.

A fifth grader in Colorado doesn’t support Obama for president. Well, that’s not of any real concern because he’s too young to vote.

But the fact that Daxx Dalton wore a T-shirt saying “OBAMA A TERRORISTS BEST FRIEND” was enough to land him a suspension from Aurora Frontier K-8 School in Aurora, Colo.

Naturally, there were the usual “you violated my free speech” and “I’m going to sue.”

But did the school actually violate Dalton’s free speech rights when it asked him to turn his shirt inside out and suspended him when he refused?

In the past, I would have supported Dalton’s free speech rights just as I supported Joe Frederick’s a couple of years ago when I blogged (elsewhere) against the Supreme Court’s decision in Morse v. Frederick (2007). You may recall that Frederick (and others) held up the “Bong Hits 4 Jesus” sign across from Juneau High School to get media attention when the Winter Olympics torch relay ran by in 2002.  Supposedly, Frederick was suspended for 10 days defying his principal’s request to put down the banner, and not for initially displaying it.

But with all the hate and violence going on in the world at this time, I think that the school used the proper judgment in Dalton’s situation and did not violate the basic holding in Tinker v. Des Moines (1969) in which Justice Fortas said: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

I was asked this afternoon by Interfaith Alliance to review its new YouTube video Pulpit Politics: The Race for Pastor-In-Chief.

On a few occasions, I’ve felt uncomfortable, as a nontheist, with some positions of the Interfaith Alliance, because I’m a strict advocate of separation of church and state.

But, I am in complete agreement with the organization’s opposition to pulpit politics — including this Sunday’s call by the Alliance Defense Fund for ministers to endorse a candidate in November’s presidential election despite it being a clear violation of the U.S. tax code.

The video shows some clips of extremist pastors endorsing John McCain and Barack Obama — with the implicit message that we should oppose pulpit politics because extremist pastors are the ones who typically endorse candidates.

I guess using fear is the best tactic (though not typically my favorite approach) because asking pastors to comply with the First Amendment’s mandate of separation of church and state based on the U.S. being a religiously diverse nation is a hard sell.

Hope you enjoy the video, and pass the link on to a friend or two.

A Massachusetts federal district judge rejected last week a challenge to a state law requiring a 35-foot buffer zone around driveways and entrances of reproductive health care facilities.

In a Boston Globe article last February, Angus McQuilken, vice president of public affairs for the Planned Parenthood League of Massachusetts is quoted saying: “For too long, patients and staff had to endure in-your-face screaming and harassment just to get to doctor’s appointments. This 35-foot zone is more than reasonable.”

In a 75-page opinion by U.S. District Judge Joseph L. Tauro in McCullen v. Coakley (D MA, Aug. 22, 2008), the court rejected First Amendment, Equal Protection and Due Process challenges.

In denying the Free Speech claim, Judge Tauro wrote: “The Act does not regulate speech, expression, prayer, singing, worship or display of religious articles. It merely regulates where such expression may take place, i.e., outside of a clearly marked buffer zone during the normal business hours of an RHCF. The Act also applies to all non-exempt persons equally. As a result, this court is ‘bound to conclude that the regulation does not discriminate against a particular religion or religious practice.’ ”

In a different context, but same legal principle, the Supreme Court has said: “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’ ” Employment Division v. Smith, 494 U.S. 872 (1990).

Thus, not withstanding my strong support for free speech rights, I would expect that the U.S. Court of Appeals for the 1st Circuit would uphold the District Court’s decision should the plaintiffs appeal.

A U.S. court of appeals issued a decision earlier this week that held that, under Florida law, the right to excuse a child from recitation of the Pledge of Allegiance in public schools lies with parents, and not their children.

So if all you see is a headline like “11th Circuit Holds Parental Rights Can Trump Child’s 1st Amendment Protections,” you would get the impression that the court held that parents’ rights are superior to children’s rights. Don’t be fooled by headlines.

Different issues are involved in Frazier v. Winn (11th Cir., July 23, 2008) than the landmark case of Wisconsin v. Yoder, 406 U.S. 205 (1972), which held that parents have a constitutionally protected interest in guiding the religious future and education of their children. Yoder involved a constitutional right.

The issue on appeal in Frazier, on the other hand, involved a statutory right. The relevant part of the Florida statute reads: “Upon written request by his or her parent, the student must be excused from reciting the pledge.” Clearly, under the statute, children cannot write their own excuse.

The good news is that the court said that it was not deciding the statute’s constitutionality as applied to “a specific student or a specific division of students.” As a result, the case will go back to the trial court for a determination of whether a student has a constitutional right (i.e., independent from the statute) to refrain from reciting the Pledge. I predict that Cameron Frazier, the student, will win the next round.

By the way, each week day I check the 9^th Circuit’s website for a decision in Newdow v. Carey – a case that involves a challenge to the inclusion of “under God” in the Pledge. I’ll keep you posted.

What does humanism and the Supreme Court case of Ashcroft v. Iqbal have in common?

Here’s a hint. “The responsibility for our lives . . . is ours and ours alone.”

You’ve got it — personal responsibility.

The actual questions before the Court are how specific Javaid Iqbal’s allegations must be to sustain a suit against high-level government officials and whether the officials can be held personally liable (i.e., accountable) for the unconstitutional acts of subordinates.

Former Attorney General John Ashcroft and FBI Director Robert Mueller argue that the bar should be high, otherwise the officials will be afraid to give the President advice for fear of being sued. They also argue in a case to be heard this fall that “September 11th” justifies heightened security measures — translate as meaning that Americans need to give up some of their constitutionally protected civil liberties.

As I said on a recent American Dream show, “the Preamble of our Constitution starts with the words “We the People,” not “King George [Bush]. ” The point is quite simple. In a representative form of government, officials necessarily must be accountable to the people or democracy fails.

Generally, government employees – at all levels – are not personally liable for injuries they cause in the ordinary course of their employment. In stead, personally liability only occurs when an official knew or should have know that their actions violated established law and the conduct was egregious. Whether the policies established by policies Ashcroft and Mueller led to the mistreatment of Iqbal is for the courts to decide.

My guess, and it’s only a guess, is that the U.S. Court of Appeals will hold that the lower court did not abuse its discretion by not dismissing the Iqbal’s case so early in the proceedings.

And my hope is that the case will go to trial (or settled) and, if the evidence shows that the actions of high level government officials contributed to Iqbal’s being abused in a federal detention facility, then they will be held personally accountable.