By Wendy Kaminer, 

     “(M)ost Americans have a non-dogmatic approach to faith,” the Pew Forum happily announced this week.  Pew’s widely reported, 2008 “Religious Landscape Survey” found that Americans combine religiosity (92% profess belief in God or a “universal spirit”) with tolerance:  “Most Americans agree with the statement that many religions – not just their own – can lead to eternal life.”   This portrait of America as an open-minded, religiously diverse nation comports with the national self-image, perhaps not surprisingly, considering that Pew’s findings are based on a survey of 35,000 Americans, many of whom may profess beliefs that they haven’t quite internalized.      

    In South Carolina, at least, religious sectarianism prevails.  There, state government has decreed production of special Christian license plates, picturing a cross against a stained glass window and emblazoned with the words, “I Believe.” The state does not sponsor license plates signifying belief in any other religion, or no religion; in fact, as Americans United has stressed, state regulations of vanity plates insure that “other religions will not be able to get similar license plates expressing different viewpoints, nor can a comparable ‘I Don’t Believe’ license plate be issued.”   

    Americans United is challenging this clearly unconstitutional practice in federal court, and, so far, proponents of the “I Believe” plate have reacted to the lawsuit with predictable, crowd pleasing stupidity: “I think this has less to do with the First Amendment and more to do with their disdain for religion generally,” the Republican House speaker opined.  Never mind that plaintiffs in the AU case are four clergymen and the American Hindu Foundation.  The Lieutenant Governor, who has offered to loan the state $4000 to facilitate production of the “I Believe” plate, defended state sponsorship of the plate as a “freedom of speech issue.”  Never mind that it’s the people who have freedom of speech against the state, which has no freedom of speech against the people.  The state has power; the people have rights, designed to check abuses of power, like state sponsorship of sectarian religious practices and beliefs, as Lieutenant Governor Bauer might learn from an elementary civics class.  “Most Americans have a non-dogmatic approach to faith?”  South Carolina didn’t get Pew’s memo, I guess.

By Harvey Silverglate 

The Massachusetts judiciary – and as a result, the people of the Commonwealth of Massachusetts – are about to lose one of liberty’s most effective and reliable friends. But just because state Superior Court Judge Isaac Borenstein will retire from his life-tenured position on the state’s trial court on September 12^th doesn’t mean that he will disappear altogether from the battle for freedom, decency, and fairness. Instead, he plans to conclude his 22 years of service on the bench by returning, at age 58, to a law practice emphasizing civil rights and civil liberties cases. 

Judge Borenstein’s departure from the bench follows an increasingly typical narrative; he isn’t leaving his judicial post because he’s tired of it. He explained to David Yas of the Massachusetts Lawyers Weekly that he likely would have continued his judicial career for a while but for the fact that his son Simon is a student at Carnegie-Mellon University. Private colleges like Carnegie-Mellon, which costs $52,000 a year, put public servants like Borenstein in the unfortunate and unenviable position of having to decide between providing for their children’s education – and facing financial hardship – and keeping their jobs. This trend is playing out around the country as our courts – both state and federal – continue to suffer judicial flight due to the inadequate salaries given to even our most seasoned judges. (Judge Borenstein and many others on the bench could easily earn in private practice a salary worth several times the $129,694 that he currently earns.) 

While I’ll be sad to see him leave the bench, the realities he faces mean that I can’t fault him for making the decision he did. I hold Borenstein in high regard for his wise and prudent decisions and actions on the bench – which happen to be his claim-to-fame among the local bar members. However, my respect for him is partly rooted in, and was very much enhanced by, his brave and principled decision to grant the defendants’ motion for a new trial in the tortured Amirault case.  

That case, which readers might be familiar with as the “Fells Acres Daycare Case,” was one of the earliest instances of the nationwide sex panic in the early 1980s, where prosecutors, social workers, jurors and many judges believed the testimony of 3 and 4-year-old children who alleged, after being tutored in their stories by cops and social workers, that workers in pre-school day-care centers performed the most astonishing, vile, unbelievable, and often literally physically impossible sexual assaults on them. (The Pulitzer Prize-winning Wall Street Journal columnist Dorothy Rabinowitz ably documented that national panic in her highly-regarded 2003 book, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of our Times.) The Amiraults had already brought their case up to the Supreme Judicial Court of Massachusetts by that point, but the high court had issued a disgraceful decision penned by then-Justice (now Harvard Law professor) Charles Fried denying them relief on the ground that “finality” was a major judicial value that sometimes had to trump truth and justice.  Recognizing the enormity of the injustice done to the three members of the Amirault family accused in that case, and seeking perhaps to do an end-run around Justice Fried’s and the SJC’s ill-considered “finality” ruling, Judge Borenstein later granted the defendants’ third motion for a new trial, though his decision was subsequently overturned -- the second such reversal in the case -- by an obdurate SJC .  

Judge Borenstein’s attempt to do justice for the Amirault family, even in the face of hostility from the state’s highest court, was the right thing to do. I suspect that in the long run – from the standpoint of ethics – it will have longer and more influential impact than the SJC’s misguided reversals of lower courts’ attempts to do justice. Borenstein proved that sometimes there’s more wisdom on the trial bench than at the appellate level of the judicial system. His wisdom and courage will be missed, but I for one, recognizing that he could not stay on the bench much longer, now look forward to his new career as a trial lawyer promoting civil rights, civil liberties, and elementary justice from the other side of the bench.

In a puritan streak, Harvard University has forced several student groups who were planning on hosting a "Barely Legal" party to change the name -- or they otherwise couldn't hold the party, according to the Harvard Crimson and the Foundation for Individual Rights in Education (FIRE). (Disclosure: Free For All writer Harvey Silverglate is Chairman of the Board of Directors of FIRE.) One student involved in the party's planning explained that the name was meant to imply the party "is going to be so crazy it should be illegal," but other students complained about the allusions to pornography. It's unfortunate that students are so sensitive on college campuses that they force their classmates to apologize even though their party ideas aren't "intended to imply statutory rape," but it's even more unfortunate that Harvard has shamelessly capitulated to student complaints and prevented students from expressing themselves. In the words of FIRE President Greg Lukianoff, "If Harvard is willing to censor something as small as a party with a mild theme, how can we believe that it will defend the expression of truly controversial views on its campus?"

Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site might see this post misattributed below to Wendy Kaminer because of software limitations with the old system. The post was penned by James Tierney, a research assistant for Harvey Silverglate.

Last September, Harvey wrote in The Free For All about Star Simpson -- the MIT student who was arrested at Logan Airport for wearing a (prank) sweatshirt displaying a working circuit board connected to a battery -- and predicted that "there is no way prosecutors can convince twelve sane jurors that a student, wearing such a sweatshirt with the flashing lights tacked onto the outside rather than hidden underneath her clothing, was actually trying to perpetrate a hoax that she was a suicide bomber." Well, this morning's Boston Herald confirmed Harvey's prediction, reporting that the DA's office decided not to pursue the hoax charges because they could not have proven her "intent to cause anxiety, unrest, fear or personal discomfort" -- a necessary element of the crime -- to a jury. Instead, she gets pre-trial probation for the disorderly conduct charge, and prosecutors plan to drop that charge in a year if she completes community service and doesn't get into any more trouble. 

Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site might see this post misattributed below to Wendy Kaminer because of software limitations with the old system. The post was penned by James Tierney, a research assistant for Harvey Silverglate.