Tag Archives: Constitution

Virginia state preachers free to preach… er, so long as they’re not Muslim

According to this report, the Virginia House of Delegates has approved a bill that removes a restriction previously requiring that chaplains for Virginia state police offer “ecumenical, non-denominational prayers” at official events.

Backers of the bill said it restored the chaplains’ right to religious freedom. But opponents said the bill violates the First Amendment by having the state advocate one specific religion.

[…]

Del. Charles W. Carrico, a retired State Police trooper, drafted the bill after State Police Superintendent W. Steven Flaherty issued a directive to chaplains to offer generic prayers at department-sponsored public events such as graduations from the trooper training academy.

“I do not want to interfere with anyone else’s religion. I am a Christian and I will profess that,” said Carrico, R-Grayson. “The Christian faith happened to be the one under attack when this came about.”

Flaherty issued the guidance in response to a 2008 federal appeals court ruling upholding a Fredericksburg City Council policy against opening council meetings with prayers that mention Jesus.

The directive does not apply to chaplains in private venues such as funerals or in counseling grieving troopers or their loved ones.

[House Majority Leader H. Morgan] Griffith called opponents’ use of the same constitutional free-worship guarantees to argue that the bill is an impermissible state intrusion into religion “Orwellian doublespeak.”

Del. Adam Ebbin, D-Alexandria, said the bill blurs the distinction “between state-endorsed religion vs. the exercise of free religion by individuals.”

Ebbin, who is Jewish, said that when he attends a Christian church, he expects to hear prayers in Christ’s name and accepts them.

“When I go to a public event in a public-sanctioned forum, I do not expect to be excluded,” Ebbin said.

The bill is not that surprising, and will probably never be enacted, as Virginia Gov. Tim Kaine will likely veto it, and even if he didn’t, it would likely be ruled unconstitutional anyway during the lawsuit that the ACLU has threatened.

First Amendment law professor Kathleen Bergin caught this article, and not so much for the law as the response by one dissenting, Democratic delegate:

Del. Lionel Spruill, who opposed the bill, made his disdain for Islam clear in a floor speech. In making a point about observing diverse religious traditions, he said Muslim relatives who visit his Christian church are asked to remove their traditional head coverings.
[…]

He said he has no problem with most clergy who offer the daily invocation at the start of each House session.

“From time to time we have certain people who come here, certain people who pray here, and depending on who it is, I’ll walk out that door, especially those in the Muslim faith I don’t care too much about,” he said.

Professor Bergin’s response:

Spurill’s vote against the bill wasn’t rooted in a concern about the crumbling wall that’s supposed to separate church from state, or protecting the state from the inevitable ACLU suit that would follow passage of the bill, but the mere prospect of including an Imam at an official police event.

[…]

I don’t understand why this part of the story hasn’t gotten more coverage (ok, so I do), but could we ever imagine an elected state official making such remarks about any other religion, and having it go virtually unnoticed in the national press?

Indeed, Delegate Spurill’s comments are awful, but they are a true example of exactly why the Establishment Clause exists to keep religion out of government.  (Interestingly, one could also use his comments as evidence for the other side–that if a chaplain comes to deliver a prayer that any particular state official or police officer disagrees with, he or she could just step out into the hallway.  Of course, it doesn’t often work that way.)

But this statute is also a poignant example of the “unseen” half of the Establishment Clause.  The Establishment Clause works not only to keep religion out of government, but also to keep government out of religion.  Because the Virginia state patrol has chaplains, it must pass regulations deciding to whom those chaplains may (or may not) pray at official functions, to avoid endorsing a religion and violating the First Amendment.  Yet, in doing so, the state “waters down” the practice of many of those chaplains’ faiths, at least in their official capacity.  This is why the original Lemon v. Kurtzman court was concerned about “excessive entanglement” with religion (although modern courts have shrugged off that concern). How can you have chaplains providing faith services to civil servants when the government commands what the scope of those services can be? Do the chaplains truly have a Free Exercise right to say “in the name of Jesus, Amen”? Is watered down prayers to the “Almighty Creator” better than no prayers at all? Are non-Christian police officers part of the “outgroup” when an “Endorsed” chaplain proselytizes? Or is it the chaplain’s “freedom of conscience” that is violated? And what about minority religious figures?  It seems that every time the government gets this involved in providing some sort of “religious tone”-especially before “official events,” this stuff happens.  There are no easy answers to these questions.  And it appears that Pres. Obama hasn’t learned this lesson, either.

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Rats! New Jersey Supreme Court rules that inflatable rodent is First Amendment Speech

A giant inflatable rat is protected by the First Amendment... only in New Jersey! Image from the <a href=

A giant inflatable rat is protected by the First Amendment... only in New Jersey! Image from the AP.

According to these news reports, yesterday the New Jersey Supreme Court ruled that a New Jersey city could not fine a local labor union or its use of a large, inflatable rat to protest non-union work pursuant to city ordinance banning inflatable displays except for store grand openings. As reported by the AP:

The super-sized rat, sitting on its hind legs and bearing fangs, is a national symbol used by organized labor to signal a labor dispute. It had been blown up and displayed at a 2005 labor event in Lawrence Township until police enforced a law that bans banners, streamers and inflatable signs, except those announcing grand openings.

A labor official was fined $100 plus $33 court costs.

The event was staged by the union to protest low wages being paid to electricians by an out-of-area contractor.

An appeals court panel ruled in 2007 that the town could ban the big black rat and affirmed the labor official’s fines. The panel found the ordinance was content-neutral and was aimed at enhancing aesthetics and protecting public health and safety.

The union appealed. Its lawyers argued the law violates their right to free expression and suppresses protest.

The township claimed the union’s use of the rat was a form of commercial speech, less deserving of First Amendment protections.

The state Supreme Court found that the law wasn’t neutral, and therefore was unconstitutional. It said an ordinance “that prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display as part of a grand opening, is content-based.”

Township attorney John Dember said, “(The court) did find that we need to do some tweaking because of the freedom of expression limitation, which we’ll undertake immediately to correct.”

The Court, in its opinion, found that the ordinance to be a content-based restriction (because the balloons permitted by the ordinance were for store openings vs. ballons for other purposes).  The rule didn’t meet strict scrutiny, and so the fines were reversed, and the city has to “tweak” the ordinance.

It appears from the opinion that the inflatable rat fails not only because it’s inflatable (a specific prohibition in the ordinance) but also because it is a “sign” for which the union did not get a permit and that was not “excepted” from permit requirements because it wasn’t a yard sign, grand opening sign, political sign, window sign, etc. But because Gold’s gym (the venue that was being protested for using non-union work) could have put up a “grand opening balloon” at the same site and not be subject to fine or licensing, it does seem to be a content-based restriction that probably shouldn’t survive strict scrutiny.

I’m curious, though–if the ordinance was focused solely on the inflatable nature of the display, is there really a constitutional right to inflatable ballons? Is that a medium that is somehow different from, say, a 10-foot sign, or a statue made out of crepe paper?  I suppose balloons are preferrable because they’re light, easy to set up, temporary, and easier to move than any of the aforementioned options. But if the union could put up a sign or statue instead of a balloon (under the idea that balloons may be more dangerous to motor vehicles, or just plain uglier on their streets perhaps), would the result be the same? Even if Gold’s Gym was permitted to put up the balloon for a grand opening for less than a month? Would the result have been different if the petitioners weren’t a union, and/or the case was not in New Jersey?

This case was probably rightly decided, but it will be interesting to see how the city will “tweak” the ordinance to avoid content-based restrictions.  If it simply bans all balloons (or requires unreasonable permits for them), then it may run afoul of the overbreadth concerns the Court had.   One to gnaw on.

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Obama retakes oath; Chief Justice doesn’t learn his lesson?

As reported by the ABA Journal here and by MSNBC here, President Obama retook the oath of office last evening in the map room, due to the bungle of Chief Justice Roberts, which Jim Lindgren at the Volokh Conspiracy attributes to the Chief Judge’s inappropriate adherence to the fifth edition of the Texas Manual of Style‘s bogus requirement that a helping verb and the main verb not be split by an adverb. I just think that Roberts forgot because he was nervous and didn’t bring a cheat sheet, like Justice John Paul Stevens did when he swore in Vice President Biden (video here via Yahoo).

I guess the Chief did not learn from his mistake, and at least according to this photo, once again administered the oath without a cheat sheet:

According to this photo from the White House (via MSNBC) it looks like the Chief Justice once again danced the high wire without a net

According to this photo from the White House (via MSNBC) it looks like the Chief Justice once again danced the high wire without a net

According to the articles, the oath was re-administered because of fears that “conspiracy theorists” would continue to believe that Obama’s presidency was not legitimate, a theory that’s been circling on the Internet since the inauguration:

Craig, the White House lawyer, said in a statement Wednesday evening: “We believe the oath of office was administered effectively and that the president was sworn in appropriately yesterday. Yet the oath appears in the Constitution itself. And out of the abundance of caution, because there was one word out of sequence, Chief Justice John Roberts will administer the oath a second time.”

The Constitution is clear about the exact wording of the oath and as a result, some constitutional experts have said that a do-over probably wasn’t necessary but also couldn’t hurt. Two other previous presidents have repeated the oath because of similar issues, Calvin Coolidge and Chester A. Arthur.

Article 2, Section 1, Clause 8 of the Constitution states:

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

That sounds to me that, even though the President “becomes” President by operation of law at Noon, before he can take any action as president “enter on the Execution of his Office,” Obama had to take the oath provided for by the Constitution. I think that the Constitution probably doesn’t require a word-for-word recitation of the oath, so long as what was recited recognized that the new president affirms that he will execute the office and preserve, protect, and defend the Constitution.  What if the new president were deaf and had to sign the oath? American Sign Language would not necessarily be a word-for-word translation of the oath (unless each letter were spelled out; unlikely).  Yet, certainly someone using ASL to take the oath would be considered to be president.  Or what about a president who may have a lisp who says “I do tholomy thwear…”?  Once again, I’d say that’s no problem. And the Chief Justice’s acceptance of the oath as sufficient likey ends the inquiry. And who would have standing to challenge the inefficacy of the oath?

But whether or not Obama had to re-take the oath, I’m not sure this will have the desired effect.  Why? Because conspiracy theorists will continue to question the illegitimacy of the president. Not that they need any help, but here are a few more ideas:

  • The President took a variety of executive actions on Tuesday and Wednesday, including nominating cabinet positions.  If the Oath was improperly administered, (which the President implicitly admits by re-taking the Oath) aren’t all of those actions legally invalid?  And if the invalid actions include the nomination and appointment of, for example, Hillary Clinton as Secretary of State, aren’t all of her subsequent actions as SoS invalid?
  • None of this matters anyway because, according to many conspiracy theorists, Obama was not born in the United States, thus he could never be president to begin with.
  • How can a guy be president when his chief white house counsel is a guy named “Greg Craig“?

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“I don’t know how God can offend anybody,” New Jersey town wins Establishment Clause “No Doi” award

From the Poccino Record:

A nearly six-decade tradition of reciting the Lord’s Prayer at the start of Town Council meetings has ended.

The tradition, begun in 1952, stopped Monday night after a single resident’s objection. It’s the end of a popular tradition that pleased more than it dismayed, according to the five council members, all of whom described themselves as saddened by the change but resigned to the realities of court precedent.

“According to our counsel, (the prayer) is a violation of the First Amendment,” said Councilwoman Helen LeFrois.

No doi. But the article gets better:

It’s not the first time the Lord’s Prayer has been publicly questioned in Newton. In March 1995, the council began debating the values of switching the tradition to a secular prayer because a Jewish councilman, Robert Shapiro, had been elected to the council.

Shapiro adamantly supported the Lord’s Prayer tradition [?!??-ed.] and the recitation continued. Shapiro, who now lives in Florida, said he was disappointed to hear the controversy being brought up again.

“These are the traditions our country is founded upon,” he said, citing the mottos that dot U.S. government buildings — and even its currency.

“It says, ‘In God We Trust.’ That’s a lot older than the Newton Town Council,” Shapiro said.

[Actually, “In God We Trust” as the “U.S. Motto” is not older than the Newton Town Counsel, unless TV is older than the Newton Town Counsel, and it is not older than the city, which has a “rich historic heritage dating back to 1751“. – ed.]

Ray Storm, a three-time Newton mayor and four-term councilman, said he was discouraged by the abandonment of tradition, even if it was due to court precedent.

“In my mind, I don’t know how God can offend anybody,” Storm said. [No comment. –ed.]

I am not intending to demean anyone’s religion, or their particular view of God.  But the recital of the prayer Jesus taught while hanging on the cross, slowly dying at the hands of the Romans and Jews, is sectarian.  The leaders of the town are calling upon a particular God to give them particular guidance on governmental powers is nearly as close to “establishment of religion” as you can get.  While there may be a zone of religious activity permissible by the Constitution–in fact, the counsel members may even have a First Amendment Free Exercise right to provide personal declarations of faith, a Christian prayer before a counsel meeting doesn’t fit.  It’s actions like this that bring counter-actions, like Michael Newdow’s latest suit to stop President-Elect Obama from saying “so help me God” during the inauguration.  More on that action later.


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