Monday, May 12, 2008
By, Wendy Kaminer Last month, I criticized the Texas ACLU for its timidity in defense of liberty when Texas authorities raided the polygamous “Search for Zion,” compound, forcibly removed some 460 children from their parents, on the basis of one anonymous phone call (since determined to be a hoax,) and then ordered mandatory DNA testing for everyone. ("Defending the Mormon Polygamists") So it's a bit of a relief to hear the ACLU finally speaking up with a little conviction about the consequent violations of individual rights. Actually the ACLU didn’t go so far as to accuse the state of constitutional violations; it expressed “serious concerns that the state’s actions so far have not adequately protected the fundamental rights at stake,” stressing that hundreds of children were taken from their parents absent individualized determinations of abuse and objecting to mandatory DNA testing. The ACLU doesn’t appear to be taking any action in the case, but it does promise to continue “to monitor unfolding events .. . making our views known to the Texas courts at appropriate points in the judicial proceedings.” In other words, at some future point the ACLU is likely to submit an amicus brief in a case brought by one of the parties. It’s the least the ACLU can do (and perhaps the most it will do.)
Meanwhile, hundreds of hapless children raised in a Mormon fundamentalist compound have been consigned to the notorious Texas foster care system, where according to a 2006 study cited in the New York Times, “more than half of all foster children ages 13 to 17 were being given psychotropic drugs to control behavior.” According to a 2004 report, “children with violent criminal records were being mixed in the general foster care population and …medically fragile children were underserved.” It seems likely that some children who escaped abuse in the Search for Zion compound will encounter it in the Texas child welfare system.
Friday, May 09, 2008
By Wendy Kaminer,
Why is polygamy illegal? Why don’t Mormons have a First Amendment right to enter into multiple marriages sanctified by their church, if not the state? There’s a short answer to these questions but not a very good one: Polygamy is illegal and unprotected by the Constitution because over 100 years ago, the Supreme Court decided it was “an offence against society.” In Reynolds v U.S., the Court upheld the criminal conviction of a man convicted of taking a second wife in the belief that he had a religious duty to practice polygamy, a duty he would violate at risk of damnation. The Court compared polygamy to murders sanctified by religions belief – human sacrifice or the burning of women on their husbands' funeral pyres.
Even in Victorian American, this comparison made little sense. (Most Victorian women, I suspect, would have chosen polygamous marriages over death by burning.) Today, the Court's analogy is as anachronistic as a ban on adultery. What’s the difference, after all, between an adulterer and a polygamist? And if it’s not illegal for a married man to support a girlfriend or two and father children out of wedlock with them, how can it be illegal for him to bind himself to them, according to the laws of his church? What’s the moral and practical difference between a man who maintains multiple families without the approval of any church and a man who maintains multiple families with his church's approval?
"Polygamy encourages child abuse," people say, citing instances involving the marriage of older men to underage girls. Assuming that’s true, it still doesn’t justify categorical prohibitions on polygamy. Alcohol consumption may encourage sexual violence too. Should we prohibit its use, as members of the Women’s Christian Temperance Union demanded over 100 year ago? Or should we prosecute alcohol fueled rape cases whenever we find them?
All things considered, it seems impossible to enforce polygamy prohibitions fairly and indiscriminately, without also enforcing archaic laws against adultery; and there’s no reasonable basis for banning polygamy, especially when it’s considered a religious obligation. No matter how distasteful some may find it, polygamy is simply not the equivalent of human sacrifice, and constitutional rights should not be determined by judicial hyperbole.
Monday, April 21, 2008
By Wendy Kaminer,
Now that Judge Barbara Walther has refused to release from state custody the 416 children taken from their parents in the raid of a polygamous compound in Texas, ordering all parents and children to undergo DNA testing, the Texas ACLU has issued a tepid, tentative statement of “concern” about their civil liberties.
"While we acknowledge that Judge Walther's task may be unprecedented in Texas judicial history, we question whether the current proceedings adequately protect the fundamental rights of the mothers and children," said Terri Burke, executive director of the ACLU of Texas.
"As this situation continues to unfold, we are concerned that the constitutional rights that all Americans rely upon and cherish -- that we are secure in our homes, that we may worship as we please and hold our places of worship sacred, and that we may be with our children absent evidence of imminent danger -- have been threatened," Burke said.
This general acknowledgment that the summary removal of 416 children absent actual evidence of their abuse threatens fundamental rights is preferable to the silence that preceded it, barely. The ACLU’s statement is more like an exercise in public relations than a defense of civil liberty; taking no stand for or against the state’s unprecedented actions in this case, which threaten to consign over 400 children to foster care, the statement seems designed to offend no one, while providing cover for the ACLU, should it be accused of ducking a hard civil liberties case. ACLU spokespeople sound more like bureaucrats than fearless advocates of individual rights: they carefully pay deference to state power to protect children, ignoring the dearth of evidence in this case, and stress that the ACLU “deplores crimes against children” and “stand(s) opposed to child abuse,” in case anyone thought the ACLU stood in favor of it.
Obviously anxious about appearing “soft” on child abuse (at a time when rational approaches to protecting children have been perverted by hysteria about abuse,) the ACLU prefers being soft on violations of civil liberty, when the liberties of wildly unpopular or politically incorrect groups are at stake, when standing up for civil liberty might adversely affect fundraising. The polygamous practices of Mormon fundamentalists are generally repugnant to ACLU supporters (they’re repugnant to me) even if they don’t involve the abuse of minors. Perhaps that explains why the ACLU statement is silent about mandatory DNA testing of the parents and children taken from the Yearning for Zion ranch. Elsewhere, the ACLU trumpets its concern about DNA data bases and opposes mandatory DNA testing of everyone arrested, stressing that “in America, people are presumed innocent until proven guilty” -- unless they’re members of a Mormon fundamentalist sect, I guess.
Friday, April 18, 2008
By, Wendy Kaminer
When federal immigration authorities summarily rounded up immigrant workers in a surprise raid at a New Bedford factory in March 2007, civil liberties and civil rights activists immediately entered the fray, defending the rights of workers and the estimated 210 children affected by the round-up of their parents. The ACLU, which considers immigrant’s rights a priority, helped orchestrate a swift and strong response to the raid and joined a lawsuit challenging federal abuses of power. When state authorities in Eldorado, Texas raided a polygamist compound two weeks ago, removing 416 children from their parent’s custody, the ACLU kept quiet, or, at least, it hasn’t spoken up loudly enough to be heard. (Key word searches of the ACLU website turn up no results, and I’ve found no mention even of ACLU commentary on the case in the press.)
But, from a civil liberties perspective, the New Bedford case was fairly simple: workers who posed no immediate risk to anyone were denied basic due process rights against summary detentions; their children were stranded. It was a legal and humanitarian fiasco. The Texas raid was based on concerns about the sexual abuse of children, which justifies immediate action, and it involved no summary, mass detentions –- unless you count the removal of children from their homes a form of detention, which the children well might.
The trouble is, evidence of sexual abuse at the compound is circumstantial, and the raid, removal of children, and ongoing legal proceedings against the sect raise serious civil liberties issues. The raid was reportedly based on a call for help from someone who identified herself as a 16 year old girl, but she has not come forward. A Texas ranger has submitted an affidavit supporting allegations of abuse, but they have not been tested in court. A child welfare official has testified that at least 5 underage girls from the ranch are pregnant, or already have children, but as long as the fathers are unknown, no one can be prosecuted for molesting the girls. And, even proof that some minors on the ranch have been abused is not proof that all minors there are at serious risk of abuse.
Can an entire community be held responsible for the abuse of minors in its midst? Morally, perhaps, but not legally. Can the prevalence of abuse be inferred from a religious commitment to polygamy and tradition of “marrying” young girls to old men? Not legally, however rational the inference seems. The state can’t remove one child, let alone 400, based on a presumption of abuse; it needs proof.
So, federal agents are searching the compound’s temple, an action that Gerry Goldstein, the highly regarded Texas attorney representing the Fundamentalist Church of Jesus Christ of Latter Day Saints, has likened to a search of the Vatican, (a search that, come to think of it, might also uncover evidence of crimes against children.) Of course, religious belief is no defense to child abuse, and this fundamentalist polygamous sect has no greater right to abuse children than any secular group; but it also has no fewer rights than more respectable, mainstream faiths.
Should the state forcibly remove children from Christian Science parents who would deny them medical care? It’s not hard to imagine the uproar that would ensue from police raids on Christian Science homes. Parents may be prosecuted for denying their children essential medical care for religious reasons, but the state does not take preemptive action against Christian Scientists, based on a presumption that their children are at risk.
If Christian Science were a less respectable religion, however, its adherents would likely be treated with less respect by the state. Consider a 1999 Massachusetts case (which I covered here) involving the forced removal of children from an outré fundamentalist Christian sect that eschewed modern medical care. While that case, like the case against the polygamist sect in Texas, was provoked by reasonable concern about serious risks to children, it also reflected the unreasonable (and unconstitutional,) diminished legal status of religions on the fringe. I’m not suggesting that the state should hesitate to act against religious groups that pose serious physical harm to children -- only that it should act against all religious groups with equal force and respect for equal rights.
Tuesday, April 15, 2008
By Wendy Kaminer
Atheists and agnostics are typically portrayed as actively hostile to religious belief, with only occasional accuracy -- some are simply indifferent to its charms. What tends to unite us is not hostility toward religion but hostility toward theocracy, which makes many of us the most reliable champions of religious freedom. Unaffiliated with any particular sects, un-seduced by any particular supernaturalisms, we regard all with equal skepticism and so advocate providing all with equal rights. Our defense of religious freedom is also, in part, an exercise in enlightened self-interest, like most civil liberties advocacy. Given the overwhelming popularity of religious beliefs, non-theists depend upon freedom of conscience.
So I was surprised and disappointed to learn that the British Humanist Association (BHA) is endorsing new consumer protection regulations in the U.K. that facilitate the prosecution of “fraudulent” mediums by eliminating the need to prove an “intent to deceive.” Mediums found in violation of the regulations may be subjected to criminal as well as civil sanctions. Praising this punative new regime, the BHA declared, “The psychic industry is huge and lucrative and it exploits some very vulnerable, and some very gullible, people with claims for which there is no scientific evidence.
What’s wrong with this sentence? Replace the words “psychic industry” with a reference to any mainstream religious denomination or institution, and you’d have a sentiment with which non-theists would generally agree. That belief in God exploits the vulnerabilities and gullibilities most of us share, that no scientific evidence supports it, are basic assumptions of non-theism. If mediums who sincerely believe in their ability to contact the dead are to be prosecuted for fraud, then so should all members of the clergy who sincerely believe in the tenets of their faiths. Of course, none of these people would or should be prosecuted for expressing or practicing their beliefs or offering spiritual or religious guidance to others, for financial remuneration or for free. Religious liberty and freedom of conscience generally depend upon the state’s powerlessness to judge the truth or falsity of any faith and to prosecute people for indulging in them. If spiritualists may be prohibited from charging for their assistance in contacting the dead, then humanists may be prohibited from discussing the impossibility of doing so, in exchange for a speaking fee.
I’m not suggesting that any of us should have a right to defraud people. I can imagine a fraud prosecution against someone who advertises herself as a medium, lacking any belief in life after death, much less her own ability to contact those who have “crossed over.” I can imagine the prosecution of any clergyman who charges for some sort of access to God or a promise of absolution that he knows he cannot provide. It’s a bit harder to imagine proving actual fraudulent intent (or the absence of a sincere belief) in either case, but that would be a factual question; in theory, neither prosecution seems inherently objectionable. But the requirement of proving actual fraud is precisely what the new British regulations abolish, demonstrating a paternalistic disdain for civil liberty that humanists should among the first to oppose. Freedom of thought and religion means that séances enjoy the same constitutional protection as the sacraments.
Thursday, February 07, 2008
The New York Times is reporting that Wikipedia is getting flak -- in the form of angry emails and a 80,000-signature petition -- over its entry on the life and times of Muhammad. The website contains several images of the face of Muhammad taken from ancient Persian manuscripts -- images created centuries ago by Persian Muslims -- which the protesters claim violate Islam's prohibition on displaying images of Muhammad. Wikipedia has responded that "[s]ince Wikipedia is an encyclopedia with the goal of representing all
topics from a neutral point of view, Wikipedia is not censored for the
benefit of any particular group." To that end, they've locked the article for the time being, preventing any edits -- including those that would censor the images. Harvey Silverglate wrote about the New York Times and the Muhammad cartoons controversy in the Phoenix here. (Hat tip to reason magazine's Hit and Run blog.)
Friday, February 01, 2008
By Wendy Kaminer
MYSpace has deleted the 35,000 member “Atheist and Agnostic Group” in response to complaints from people who are offended by atheism, according to a press release posted by the Secular Student Alliance. Group Moderator Bryan Pesta stressed that the atheist and agnostic group had not violated any terms of service, adding, “when the largest Christian group was hacked, MYSpace’s founder, Tom Anderson, personally restored the group, and promised to protect it from future deletions.”
Rupert Murdoch, who owns MySpace, is not the government: he is not constrained by constitutional strictures against religious discrimination, which include discrimination against atheists, (although he could conceivably be bound by a contract or civil statute;) and while the non-theist movement is growing and becoming more visible, it’s not exactly a market force worthy of Murdoch’s notice. So, if he can delete atheists from his social networking site, he can delete any religious, racial, ethnic, or demographic group that he doesn’t need to cultivate. The exiling of atheists should not be a concern for atheists alone.
Obviously, it demonstrates the perils of encouraging people to believe that they have a right not to be offended. I can’t think of a good reason for anyone but atheists to care that atheists have a presence on MySpace, but people are entitled to their sensibilities, however foolish they appear to me. The trouble is, they feel entitled to impose their sensibilities on others by restricting speech; and even, or especially, our higher education system seems partly devoted to imbuing students with this anti-libertarian sense of entitlement (a trend we often decry here at thefreeforall.)
As this belief in the right to suppress “offensive” speech is coupled with increasingly centralized, private control of both new and old media, it poses increasing and potentially overwhelming threats to free speech. We can stand out on street corners and preach to passers-by, but our access to venues in which we might be heard becomes dependent on the whims of Rupert Murdoch and other gazillionaires; our constitutional remedies are moot.
De facto, marketplace censorship is not a new problem for free speech advocates. Some hoped that it would dissipate in cyberspace, where anyone can publish virtually anything, for distibution worldwide; and the Internet remains a realm of possibility. But obscure websites are simply the virtual equivalents of street corner leaflets, while MySpace has an estimated 70 million users. Whose standards of offensiveness should rule them?
Friday, January 18, 2008
By Wendy Kaminer
It's foolish to seek logic in appeals to religious faith, especially those made while campaigning, but I can’t help interrogating Fred Thompson’s refrain that our "basic rights come from God and not from any government." What exactly does this imply – that if Christians are denied the right to proselytize, they should pray for the right to be restored instead of petitioning their government? When people are fired or not hired on the basis of race, religion, or sex, should they turn to their spiritual leaders for help instead of their lawyers?
You don’t have to think long or hard about this disparagement of political rights to recognize its senselessness. Even right wing Christian activists who cheer Thompson’s preaching aren’t foolish enough to practice it. When anti-abortion activists are denied the right to protest outside the entrances of abortion clinics, they sue; they turn to the government, not God, for redress.
Still, Thompson’s illogical slogan isn’t meaningless. It’s code for what Huckabee stated more or less explicitly to a crowd of supporters in Michigan -- that the Constitution should be amended to reflect Christian notions of Godliness: “I believe it's a lot easier to change the Constitution than it would be to change the word of the living God, and that's what we need to do is to amend the Constitution so it's in God's standards rather than try to change God’s standards so it lines up with some contemporary view of how we treat each other and how we treat the family.”
Mike Huckabee has stressed his support for constitutional amendments prohibiting abortion and gay marriage, but given his notions of Godly government, there’s no reason to believe that he doesn’t favor granting the state constitutional power to proselytize, (through official school prayer, for example,) or codifying his favorite biblical mandates. Without becoming unduly alarmed, it’s worth noting that a substantial minority shares Huckabee's yen for theocracy. 32% of respondents to a 2006 Pew Forum survey said that the bible should have more influence on U.S. law than the will of the people. (60% of white evangelicals would elevate the bible over the people’s will.) A strong majority of all survey respondents (two-thirds) regarded America as a Christian country.
It’s not all bad news for secularists, considering the slowly increasing visibility and maybe even respectability of non-theism. And the electoral power of the religious right may have peaked (some consider the Terry Schiavo case to have been its Waterloo;) but it is still a lot more more powerful and maybe a little more popular than what is commonly denigrated as the secular left.
According to Pew, while Americans are conflicted about the relationship between religion and government, they tend to be more critical of liberal efforts to divorce religious belief and law than conservative efforts to marry them. 49% of survey respondents agreed that “conservative Christians have gone too far in trying to impose their religious values on the country,” but 69% agreed that “liberals have gone too far in trying to keep religion out of schools and government.”
I suspect this means that while majorities may oppose religious campaigns against stem cell research, or Congressional interference with private end of life decisions, they are more resentful of secular opposition to official expressions of religious belief. With the Supreme Court on their side, they might start by posting copies of the Ten Commandments in courthouses and schools; it's unclear where they'd end.
Wednesday, December 12, 2007
By Wendy Kaminer
I shouldn't bother critiquing anything penned by the Dinesh D’Souza, but his latest screed on atheism is hard to resist. Extrapolating from some intemperate comments posted by one anonymous, self-identified atheist who claims that he slapped his mother “the last time that she tried telling me that god existed,” D’Souza concludes that “atheism sometimes produces so much bitterness that even the natural human sentiments become distorted and warped.” It doesn’t “stop with disrespect,” he warns. “Next we’ll hear about the atheist who became so angry about God that he went into a church and Christian charitable center and started shooting people,” he observes (for D’Souza this qualifies as a quip,) in an obvious reference to the recent killings in Colorado Springs.
Unfortunately for D’Souza, the teen-age Colorado Springs shooter, Matthew Murrary, was “home-schooled in a religious household.” Whatever it was that drove him crazy was not an atheistic upbringing. On the contrary; knowing nothing more about Murray’s pathology, atheists who think and argue like D’Souza would reflexively blame religious belief for his derangement.
Like Ann Coulter, D’Souza is so irrational and so contemptuous of fundamental ideals of liberty and fairness that he lacks widespread credibility. (Although, unlike Coulter, he actually seems to believe what he says.) In fact, his clumsy attacks on atheism are worth citing because they seem at least a little anachronistic. Conventional wisdom about the immorality of atheism and the impossibility of leading a moral life without religion is beginning to give way to a more nuanced view of human virtue.
Consider reactions to Mitt Romney’s obvious omission of non-believers from the diverse community of virtuous Americans he lauded in his speech on religion. It was criticized in such centrist venues as the Washington Post editorial page. (I’m happy to have been wrong when I predicted that only secularists and non-theists were likely to object.) Former Reagan speechwriter Peggy Noonan (whose elegant columns justify the Saturday Wall Street Journal) characterized Romney’s insult to non-theists as the “one significant mistake in the speech.” She attributed it to his fear of losing the votes of unthinking believers: “Why did Mr. Romney not do the obvious thing and include (non-believers)? My guess: It would have been reported, and some idiots would have seen it and been offended that this Romney character likes to laud atheists. And he would have lost the idiot vote,” which apparently includes Dinesh D’Souza.
Thursday, December 06, 2007
By Wendy Kaminer
Thank god for religious minorities: when members of minority faiths run for office they have little choice but to defend religious liberty and give at least a nod to separation of church and state. Appealing to our tradition of pluralism and, like John Kennedy, promising that as president he would not take direction from his church, even Mitt Romney occasionally sounded a little like a civil libertarian in his virtually obligatory speech on faith.
But, while Romney’s America comprises people of many faiths, it does not include people of no faith, who constitute as much as 9% of the population, outnumbering Jews, whom Romney did bother to acknowledge, and also outnumbering Mormons. He is hardly alone among candidates, especially among Republicans, in feeling free to disregard tens of millions of irreligious Americans, and he is enabled by the negative image of non-theists that he exploited in his speech: Religion is the basis of morality, Romney asserted, parroting conventional wisdom that we cannot be good without god (as if people were good with god.) Religion is even essential to freedom, he declared, a “fact” that would surprise members of religious or irreligious minorities (and many women) who have the misfortune of living in theocracies.
Romney also offered up the usual misconceptions about secularists, claiming that they want to remove religion from the public square. In fact, secularists (some of whom are religious people who believe in secular government) do not oppose public expressions of faith: every secularist I know would defend the right to preach in the public square. What secularists oppose is government support for public or private expressions of faith. If a public park is also a public forum, then religious groups have the same right as non-religious groups to make speeches, hold rallies, or mount displays, like crèches, in them – so long as their activities are not funded or otherwise endorsed by government.
It’s true that some secularists want to remove references to god from our money and from the Pledge of Allegiance. But, however petty and meaningless these references seem (and I am not in favor of making a federal case of them,) they do represent inappropriate government support for religious belief: a dollar bill is not the public square, and neither is an official pledge of fealty to the nation.
These are not such subtle distinctions, but Romney is not alone in ignoring them; and the hypocrisy of his call for tolerance is likely only to be noticed by those secularists and non-theists who are targeted by his intolerance. To many of us, it will be clear that Romney’s position on religious bigotry is a lot like his position on abortion rights, stem cell research, and gay rights: it’s determined by political expedience. Romney opposes bigotry in self-defense, not in defense of others, which is to say that he does not really oppose it at all.
Sunday, December 02, 2007
By Wendy Kaminer
Friendly, occasionally funny, less doctrinaire than many of his fellow conservatives and more approachable than the authoritarian Rudy Giuliani and robotic Mitt Romney, Arkansas governor Mike Huckabee is the right wing preacher/politician/presidential hopeful that some liberals are learning to like. “…he prefers consensus to confrontation .. . regards government as a tool for social betterment, (and) … liberalism not as a moral evil, a mental disease, or a character flaw,” Hendrik Hertzberg writes in The New Yorker.
But (as Hertzberg concedes,) Huckabee also advocates constitutional amendments banning abortion and gay marriage – both of which violate his religious beliefs. (Nor does he believe that humans are related to apes.) How would he justify governing (and amending the Constitution) in accordance with sectarian articles of faith? In a June, 2007 appearance before a panel of journalists organized by the Pew Forum, Huckabee generally finessed the question of church/state separationism, (which none of the journalists pressed.)
In his view, the First Amendment simply states that Congress should not pass laws “where someone’s personal religious faith gets prohibited by the government .. .To me, that’s really simple. … that government can’t dictate to those who have faiths as to what they do and what they believe as long as it does not infringe or endanger someone else.”
In other words, Huckabee recognizes that the Constitution guarantees the people free exercise of religion and utterly ignores the fact that it prohibits government from establishing religion – meaning that the state may not endorse or otherwise support sectarian religious activities or govern according to the dictates of the Bible or any other holy book. If anyone at the Pew Forum noticed what Huckabee’s version of the First Amendment omits, no one pointed it out.
Huckabee also employs a familiar rhetorical trick, implicitly misstating the views of secularists so that he looks like a victim of their irreligious biases. The First Amendment is “not about people of faith being unable to participate in government,” he slyly says in answer to a question about separating church and state. No one called Huckabee on this misstatement either and asked who has ever seriously suggested that the First Amendment is about prohibiting people of faith from participating in government. Indeed, the secularists and civil libertarians I know strongly support the Constitution’s ban on religious tests for public officials; never mind the gross abuse of liberty that would be entailed in denying religious people the right to “participate” in governance by voting.
No one asked Huckabee about his claim that when “other” unspecified candidates “are asked about faith … their answer is ‘Oh, I don’t get into that; I keep that completely separate. My faith is completely immaterial to how I think and how I govern.’ ” I can’t recall ever hearing any serious candidates for high office state that their religious beliefs were irrelevant to how they thought or governed. On the contrary, most eagerly extol religious faith and testify to its centrality in their lives. What some candidates also stress, however, is their respect for religious pluralism, their desire not to impose their religious beliefs on others, and their understanding that public officials are constitutionally obliged to refrain from transforming sectarian religious beliefs into law.
Huckabee doesn’t seem to share this understanding of religious liberty as contingent on secular government, which accommodates diverse faiths without endorsing any of them. But his views on the role of sectarianism in governing may remain unclear, thanks to his amiability, his apparent popularity among journalists, and the reverence commonly afforded mainstream religious faiths, all of which are apt to deter reporters from persistently probing his commitment to our secular constitution. God forbid they should give offense.
Thursday, November 08, 2007
By James F. Tierney
Last week the family of a U.S. marine who died in Iraq won a $10.9 million award against members of the Westboro Baptist Church for picketing outside the soldier’s funeral, bearing signs reading “God Hates Fags.” (They “argue” that U.S. servicemen and women are dying in Iraq because God is punishing the U.S. for its tolerance of gay people.) Law professor Eugene Volokh makes a convincing argument that the verdict is unconstitutional. The case is now expected to go to the Fourth Circuit, which will consider whether the award will be overturned. We’ll keep an eye on this one.
(Update, Nov. 12, 2007: this post has been edited from the original.)
Wednesday, November 07, 2007
By Wendy Kaminer
Anyone who has yet to be convinced that the term “faith-based” social services is a euphemism for sectarian social services should consider that the Bush Administration has directed 98% of “faith based” foreign aid funds to Christian groups (according to a 2006 report by the Boston Globe.) That should come as no surprise. It’s not as if we’re a country of Deists, or even Unitarians, with vague or “inclusive” theologies. Institutionalized religious faith is specific and generally exclusive. It’s a divider, not a uniter, which is why religious freedom requires restraints on government power to favor one faith over another – which the government can’t avoid doing when deciding which faith based groups to fund. Naturally, the Bush Administration chose Christian groups, including those that prefer not to hire gay people or people of contrary religious faiths.
“Faith based” funding” came into vogue some ten years ago, when Congress enacted charitable choice legislation extending federal funding to sectarian social services groups. (Previously, charities affiliated with religious institutions were eligible for public funding if they were independently operated and did not engage in sectarian activities.) Since then, sectarian groups seeking federal funds have also demanded the same exemptions from employment discrimination laws that have long been enjoyed (for good reason) by privately funded religious institutions. Obviously, religious groups must engage in employment discrimination when filling religious posts, in order to maintain their religious character: it’s up to the Catholic Church, not the state, to decide whether to allow women to become priests.
But it should be equally obvious that when sectarian groups undertake secular activities that are funded by the secular state, they should play by secular rules of fairness and non-discrimination in hiring. Religious organizations have successfully established their right to receive federal dollars for delivering social services by arguing that they should be treated like secular service providers. If they want, and obtain, the same rights as secular organizations, shouldn’t they be prepared to shoulder the same obligations?
Not according to the Bush Administration. Congress has generally resisted exempting government funded, sectarian social service providers from employment discrimination laws, but Congress has hardly been an effective check on this executive. Just last month, the Justice Department recommended that sectarian groups receiving federal funds should be allowed to discriminate in hiring, under the Religious Freedom Restoration Act.
RFRA, enacted in 1993, greatly limited the power of government to subject religious people and organizations to generally applicable laws, if they imposed substantial burdens on religious exercise. A few years later, in 1997, the Supreme Court held that RFRA was unconstitutional as applied to the states, but it still applies to the federal government.
What constitutes a substantial burden on religion? Extending equal rights to gay people, according to some religious conservatives. Given the generation gap on gay rights, 20 or 30 years from now zealous opposition to full equality may well seem rather primitive. Indeed, the insistence that sexual orientation should be a basis for extending or denying rights to people seems incrementally more anachronistic every day.
But the Bush Administration isn’t exactly forward looking; not content to allow federally funded religious groups to discriminate against gay people, it wants private businesses to enjoy the same prerogative, under federal law. The president has promised to veto the Employment Non-Discrimination Act pending in Congress, (ENDA) which would protect people from employment discrimination based on sexual orientation. (Advocacy groups are battling Congress over extending these protections to transgendered people as well, but that’s another story.)
On what basis would the president veto ENDA? (He can’t quite come out and say that all people are created equal, gay or straight.) The White House is arguing, or rather declaring, that ENDA would violate the right to free exercise of religion as guaranteed by (take a guess) the Religious Freedom Restoration Act. A law designed to guard against religious discrimination has devolved into a law empowering religious people to discriminate – with federal funds, in the secular sphere.
Someone should ask the President if he believes that the 1964 civil rights act violates the religious freedom of employers who believe that racial segregation was divinely ordained or that God wants women to stay home. Arguments like this did not prevail in the 1960s but, as I’ve said, the Bush Administration isn’t forward looking.
Thursday, October 25, 2007
By Harvey Silverglate
The act of censorship is usually seen as a direct affront to the First Amendment, buts it’s not always that clear and simple. The reason, of course, is that the amendment has several clauses, and at times some of them are in tension with one another, if not in seeming conflict.
Consider today’s curious report in The Boston Globe that the pastor of St. Joseph’s School in Wakefield, Rev. Ron Barker, ordered the removal of the Harry Potter series of books from the school library’s shelves. At first, it seems to be a slam-dunk case of unconstitutional censorship. Once a book is selected by the relevant school authorities for placement in a school library, the Supreme Court has ruled, there has to be a pretty good reason for administrators to remove it. The First Amendment, after all, protects the freedom of speech and press.
However, the First Amendment also protects the “free exercise” of religion, and if an administrator at private parochial school decides, as Rev. Barker reportedly has, that the witchcraft and sorcery themes of J. K. Rowling’s now-classic series are inimical to Catholic religious teachings, and that, as one parent reported, “he said it’s his job to protect the weak and the strong” from undue literary influences, then the First Amendment actually protects that act of censorship. Besides, the First Amendment arguments are moot in this case anyway, because the constitution protects only against censorship by public officials, and that doesn’t cover any private school, whether religious or not.
And so, in this instance, the First Amendment, if it were even applicable, actually protects the power of Rev. Barker to keep the students from reading the Potter books in school. Of course, having the power to censor does not mean that it is wise, or even effective, to do so. Indeed, Rev. Barker could have saved himself the trouble, since it’s obvious that the students will read the books elsewhere if that’s what they want to do. There’s one surefire way to deal with official censorship – by unofficial reading outside of school.
Wednesday, June 27, 2007
By Wendy Kaminer
Civil libertarians have good reason to mourn the Supreme Court’s latest rulings eviscerating student speech rights and empowering the president to divert public funds to sectarian religious groups. In the wake of the Court’s earlier decision this term upholding bans on second trimester abortions, these cases confirm that the Court is now pretty firmly under the control of authoritarian (not libertarian) conservatives. Occasionally the conservative majority will rule in favor of liberty; expect it to do so when the liberty interests align with the interests or biases of conservatives, as they do in debates about campaign finance restrictions.
The “liberal” wing of the Court, which in saner times would be described as centrist (with the possible exception of Justice Ginsberg,) dissented from Chief Justice Robert’s majority opinion in the campaign finance case, which limited a provision of the McCain Feingold law that greatly restricted the political speech of corporations and unions. Naturally, many liberals and other reformers intent on somehow divorcing money from politics (an effort akin to trying to divorce teenagers from sex,) considered this ruling another defeat.
But McCain Feingold is an illiberal bill that restricts much more than the speech of presumptively “evil” corporate speakers. The provision struck down by the Court also applied to not for profit advocacy groups, like the NRA, NARAL, and the ACLU, and it prohibited these groups, as well as corporations and unions, from using general funds to broadcast “electioneering communications” that merely mentioned a candidate’s name 30 days before a federal primary and 60 days before a general election. What was an electioneering communication under McCain Feingold? It included “issue ads,” like an ad by a gay rights group that said, “Call Congressman X and tell him how you feel about a constitutional amendment prohibiting gay marriage.”
It should be obvious that this restriction on “issue ads” was an unconstitutional restriction on core political speech, which the Court rightly rejected. And, surely, reformers interested in good government should vigorously oppose laws like McCain Feingold that criminalize ads criticizing members of Congress (or their positions on public issues) during their re-election campaigns. (No one should be surprised that a campaign law enacted by incumbent legislators benefits incumbents.) But I suspect that a lot of people reflexively support campaign finance restrictions in the mistaken belief that they simply muzzle fat cats bent on corrupting the process. In fact, they muzzle ordinary citizens (as former FEC chair Bradley Smith explains in the WSJ.) And, in some ways, they enhance rather than restrict the advantages of the ultra-rich in election campaigns, as the proliferation of 527's has shown.
Restrictions on issue ads and similar “reforms” also translate into law the familiar, lamentable, de facto principle that a free press belongs to those who own it. As many of us have observed, McCain Feingold potentially amplifies the voices of press titans, like Arthur Sulzberger and Rupert Murdoch, who retain their rights to publish editorials discussing issues or directly attacking candidates whenever they choose, while advocacy groups, representing millions of individual citizens who don’t own newspapers or radio stations, effectively lose the right to purchase broadcast time for similar purposes. But, you’d never know this from reading the New York Times editorial page; in criticizing the campaign finance decision, the Times accused the Court of “magnifying the voice of wealthy corporations and unions over the voice of candidates and private citizens,” resorting to precisely the kind of misleading sloganeering that laws like McCain Feingold are supposed to restrict.
So while the Court is not consistent or intellectually honest in its defense of free speech, as the rulings this week show, neither are the New York Times and the many liberals who support McCain Feingold (sometimes without understanding its reach.) This Supreme Court will hand liberals and civil libertarians many more defeats in the coming years; let’s make the most of occasional victories.
Tuesday, May 15, 2007
The mourning period that followed Ronald Reagan’s death three years ago, in which even his fiercest critics agreed to temporarily bite their tongues, clearly won’t apply to the recently deceased Rev. Jerry Falwell. His corpse had barely turned cold before the media erupted into a debate over the demagogue’s true legacy. But all of these retrospectives, from the various “good riddance” columns circulating the blogosphere to the flattering and selective obituaries featured in some Southern newspapers, neglected to mention one of the Falwell’s most important contributions to our country, albeit an entirely inadvertent one. I am referring, of course, to his loss in the case of Hustler v. Falwell – surely one of the most unequivocal and forceful First Amendment rulings in the Supreme Court’s history.
For those too young to remember the case: Falwell sued our favorite pornographer and free speech gadfly, Larry Flynt, along with Flynt’s Hustler Magazine, in the federal court in Virginia for libel, invasion of privacy, and intentional infliction of emotional distress. The trigger for this flurry of legal claims was a parody in Hustler’s November 1983 issue of a popular advertisement at the time for Campari Liqueur. The Campari ad campaign featured some well-known public figure being interviewed about what he (or she) remembers about his “first time” – a double entendre referring to the first time he drank Campari but also to possibly more intimate activity. The Hustler parody featured Rev. Falwell discussing what Chief Justice Rehnquist, writing for the full court, delicately described as Falwell’s “first time,” namely his “drunken incestuous rendezvous with his mother in an outhouse.” “The Hustler parody portrays [Falwell] and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk,” wrote the Chief Justice.
As the case wended its way through the courts during the mid-eighties, the libel claim fell away (because the parody obviously was not claiming that the orgy actually occurred), as did the invasion of privacy charge (since the parody was obviously not true, no privacy was invaded). But the “intentional infliction of emotional distress” claim – and jury verdict of $150,000 – survived until the case made its way to the Supreme Court. Flynt, after all, intended to inflict emotional distress upon the good reverend, and he apparently succeeded.
Criticism of public figures, noted the high court, need not be polite, even-handed, subtle, reasoned, nor moderate. The First Amendment protects criticism that is “vehement, caustic, and sometimes unpleasantly sharp.” The court noted that “in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.” The court predicted that were it to rule otherwise, “there can be little doubt that political cartoonists and satirists would be subject to damages awards.” Even the nastiest of such attacks is constitutionally protected, said the high court: “The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events…. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.” Such caricatures and exaggerations, noted the court, are “weapons of attack, of scorn and ridicule and satire.” They are effective to the extent they are vicious. “It is usually as welcome as a bee sting and is always controversial in some quarters.”
And so the good reverend’s major contribution to American liberty lay not in his sermons – indeed, he usually argued for less rather than more freedom – but rather in his most famous legal defeat. If today’s plague of censorship from both the intolerant culturally conservative right and the intolerant and politically correct left is defeated, it will be in large measure because of Rev. Falwell’s eponymous court case.
Falwell became more outrageous, it seemed, as the years passed. Most recently and famously, he attributed the terrorist attacks of September 11, 2001, to those whose lifestyles and politics he loathed, claiming that “the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way, all of them who have tried to secularize America. I point the finger in their face and say 'you helped this happen.'” This attack, for which he was forced (by outraged public opinion) to apologize, probably represented the low point of a career that spun steadily downward over the years.
When I heard that Falwell died, my mind turned immediately and reflexively to another pious but intolerant man of the cloth who left much damage in his wake, William Jennings Bryan. Although not as hateful a man as Falwell, Bryan too made a fool of himself and his cause when, toward the end of his life, he acted as prosecutor in the infamous “Scopes Monkey Trial” that convicted a Tennessee public school science instructor of teaching evolution. More specifically, I recalled the remarkable obituary of Bryan penned by H. L. Mencken, in which the acerbic journalist and essayist offered this assessment of the famous reverend: “Bryan lived too long, and descended too deeply into the mud, to be taken seriously hereafter by fully literate men, even of the kind who write school-books. There was a scattering of sweet words in his funeral notices, but it was not more than a response to conventional sentimentality. The best verdict the most romantic editorial writer could dredge up, save in the eloquent South, was to the general effect that his imbecilities were excused by his earnestness.”
Mencken concluded his homage to his antagonist with this tribute, which seems eerily applicable to our contemporary political culture engendered, in part, by Falwell and his allies: “Such is Bryan’s legacy to his country. He couldn’t be President, but he could at least help magnificently in the solemn business of shutting off the presidency from every intelligent and self-respecting man. The storm, perhaps, won’t last long, as time goes in history. It may help, indeed, to break up the democratic delusion, now already showing weakness, and so hasten its own end. But while it lasts it will blow off some roofs and flood some sanctuaries.”
History does indeed repeat itself.
Friday, April 20, 2007
At the risk of being considered impolite, I can’t help but add that every one of the five Justices who upheld the ban on a second trimester abortion procedure (in defiance of expert medical opinion) are Catholic. Four are conservative Catholics. I expect that some consider the mere mention of this obvious but salient fact an example of religious bigotry, but advocates of more religion in government who praise the influence of sectarian religious ideals on public policy should be prepared to hear it questioned. And, I’m not suggesting that judges should, or could, jettison their religious convictions on appointment to the bench. I’m pointing out the need for religious diversity in the judiciary, given the inevitable influence of religious beliefs on individual morality and opinion. Isn’t it obvious that in a pluralistic country, law should not reflect and the Supreme Court should not be dominated by one sectarian point of view?
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