Category Archives: Constitution

I Don’t Think You Understand How This Works….

Okay…I wasn’t going to weigh in on the ridiculous clerk who has been refusing to comply with the law and numerous court decisions requiring her to issue marriage licenses to same-sex couples, but these paragraphs in a recent story got me:

Davis, an elected official and Democrat, has argued that she should be exempt from following the U.S. Supreme Court ruling in Obergefell v. Hodges because she objects to same-sex marriage for religious beliefs.

She had asked the judge to delay his ruling until the Kentucky state legislature, which won’t be in session again until January, can pass legislation that would exempt her and other clerks who don’t wish to follow the law.

Does this woman really believe that the state legislature can pass a bill that–in effect–overrules the U.S. Constitution?

It’s depressing enough when ordinary citizens don’t understand the most basic structure of American government, but how in the world does someone who has spent decades working in a government office remain so appallingly ignorant of the Constitution, the Supremacy Clause, and the operation of the First Amendment?

It’s hard to escape the suspicion that this is intentional ignorance, grandstanding–that no one is really that stupid.

It’s bad enough that she seems embarrassingly ignorant of the nature of religious liberty. As many observers have pointed out, she is entitled to believe anything she wants, but she is not entitled to a government job or paycheck. If her beliefs prevent her from doing what the job requires, she needs to quit.

If I told the University that my religious beliefs “exempted” me from having to teach certain students, believe me, I wouldn’t be on the faculty very long!

A Facebook friend put it this way: if a Quaker public official refused to issue a gun permit, citing “sincerely held” pacifist religious beliefs, would Davis’ “religious liberty” defenders insist that those sincerely held religious beliefs should be accommodated? Or are her defenders more likely to be a bit selective about their demands for accommodation?

It is difficult to identify the most offensive element of this sordid effort to blame discrimination against LGBT folks on God, but I think the winner may be a statement issued yesterday by Davis’ attorney, Matt Staver of the Liberty Counsel. Stare had the chutzpah (google it) to compare Davis to the Jews under the Nazis.

According to Staver, sanctioning a government employee for refusal do the job she is being paid to do is just like sending millions of people to the gas chambers.

I want to pity these people. I really do. But they seem so unworthy of human compassion.

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Constitution Day–And Other Public Service Announcements

September 17th is Constitution Day.

Bet you didn’t know that, because it hasn’t gotten very much attention. In 2004, Congress passed a law requiring that any school receiving federal funds of any kind provide educational programming on the significance of the signing of the Constitution.

Public school systems also have an obligation to mark the day, but many of them evidently struggle to find appropriate speakers and/or materials.

Fear not! The ACLU to the rescue!

The ACLU of Indiana will send trained volunteers into classrooms in central Indiana. (If you are an educator who wants to have this programming in your classroom this year, you can sign up on the organization’s website.) You can also download all sorts of helpful things–the Constitution, study guides and other materials, a classroom PowerPoint presentation and a wide variety of online resources, including games, curriculum, and videos.

As the website says, nothing is more important to our democracy than improving civic literacy. So spread the word.

Okay–so you aren’t a teacher, and you don’t need help marking Constitution Day.

If you live Indianapolis and feel the need to know more about the city and how it works before November’s municipal elections, have we got a deal for you!

The Center for Civic Literacy, the League of Women Voters, the Indianapolis Chamber of Commerce, the Urban League, the Indianapolis Bar Foundation, the Greater Indianapolis Progress Committee, the Indianapolis Neighborhood Resource Center, NUVO, WFYI, and several other civic organizations are working with the Indianapolis Public Library to sponsor three forums to be held at Central Library. They’re free and open to the public. You can learn more–and register to attend one or all of them– here.

Have you always wondered what a municipal corporation is? How the City-County Council works? Who pays taxes and who doesn’t? What our most pressing problems are? Where we see our City in 2020? Come find the answers to these questions and many others! Forums will be held on September 21st, October 6th and October 20th.

The series is called “Electing Our Future: What You Need to Know about Indianapolis Government In Order to Cast an Informed Vote.”

No politics, no spin, just basic information that will help you evaluate the priorities and capacities of the candidates for Mayor and Council who are asking for your vote.

See you there!

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Houston, We Have a Problem…

In my periodic rants about the state of civic knowledge, I’ve frequently cited the results of a test periodically administered by the Intercollegiate Studies Institute (ISI) as evidence of the American public’s worrisome deficit of civic literacy.

As troubling as that deficit of public knowledge is–as much as it contributes to political polarization and our inability to hold government actors accountable to constitutional standards– another outcome of ISI’s research should really terrify us.

Elected officials’ scores were lower than those of the general public in almost every category.

Of the 2,508 People surveyed, 164 say they have held an elected government office at least once in their life. Their average score on the civic literacy test is 44%, compared to 49% for those who have not held an elected office. Officeholders are less likely than other respondents to correctly answer 29 of the 33 test questions. This table shows the “knowledge gap” for each question: the difference between the percentage of common citizens who answered correctly and the percentage of officeholders who answered correctly.

Think about that for a minute.

Manufacturers don’t hire workers who don’t know how to make the product. Athletes who don’t understand the rules of their sport are soon gone. A lawyer who doesn’t know the rules of procedure and the precedents governing his practice area is likely to get sued for malpractice. Surely we have a right to expect our public officials to have a basic acquaintance with, and understanding of, the Constitution they swear to uphold.

I suppose ISI’s findings shouldn’t come as a shock; those of us who are watching the political spectacle that is the run-up to the 2016 Presidential election have seen plentiful evidence that–even among the people who presume to run for the highest office in the land–a number appear to be woefully ignorant of America’s history, philosophy and constitutional principles.

Perhaps we should test candidates for political office for basic constitutional competence before we allow them to run.

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Arizona and a Sigh of Relief

Among the end-of-term decisions handed down by the Supreme Court was Arizona State Legislature v. Arizona Independent Redistricting Commission. It was an important case–had the legislature prevailed, it would have dealt a near-fatal blow to the ability of good government groups to address the practice of gerrymandering.

Some years back, via a referendum, Arizona citizens struck a blow against gerrymandering by establishing a nonpartisan commission to draw its election maps. The state legislature sued, asserting that language in the Constitution limits the right to regulate national elections to Congress and state legislatures.

In a decision that legislative scholar Tom Mann called “a model of constitutional reasoning,” a divided Court upheld the right of citizens to determine who shall 

…have the ultimate authority over who shall represent them in public office. The majority opinion quotes Madison to powerful effect: “The genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but those entrusted with it should be kept in dependence on the people.”

As Richard Pildes wrote in a New York Times Op-Ed,

The main, and best, justification for direct democracy is precisely the need for this kind of check, just as the voters in Arizona exercised, on the self-interested temptations of power when legislators regulate the political process itself.

Direct democracy is hardly a panacea or a pure expression of “the popular will,” whatever that means; voters must be organized and informed, which takes resources and organizational skill. Still, direct democracy remains an important means of policing the inevitable temptations those in power have to entrench themselves more securely in power.

On Monday the court rightly recognized that, when the Constitution assigned the elections clause power to the “legislatures,” the framers were not making a judgment about whether states could create direct democratic processes as another way to regulate the national election process. Unlike their rejection of popular Senate elections, the framers did not reject popular regulation of elections: They just never considered the idea. To reject it in their name, the court wisely concluded, would have been perverse.

It isn’t easy to rein in the self-interested process of legislative line-drawing under even the best of circumstances; those who have power only surrender that power when they have no choice. Had the Arizona legislature’s challenge succeeded, redistricting reform would be virtually impossible.

File this one under “dodged a bullet.”

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Who’s Talking?

Among the decisions handed down by the Supreme Court at the conclusion of this term was a little-noted one addressing the question whether states that sell specialty license plates can refuse to issue plates with controversial images like the Confederate flag. The ruling itself is less consequential (at least, in my view) that the opportunity if affords for a much-needed lesson in Constitutional analysis.

The First Amendment prohibits government from censoring the speech of its citizens. In the case before the Court, the Sons of Confederate Veterans claimed that Texas’ refusal to issue plates bearing a Confederate flag constituted such censorship.  But the Court could not analyze that claim until it decided what lawyers call a “preliminary” question: who is speaking through that state-issued license plate–the driver or the state?

Justice Steven Breyer, writing for the court’s majority, said that Texas’ program “constitutes government speech” and that the state was “entitled to refuse to issue plates featuring SCV’s proposed design.” Just as the state could not force drivers to espouse a particular message, he said, drivers could not force a state to espouse theirs.

I think the Court got this one right. But it’s amazing how many people don’t understand the importance of determining who’s talking for First Amendment purposes.

Several years ago, plaintiffs sued Indiana’s General Assembly over legislative prayers claimed to violate the Establishment Clause. (The Courts have long allowed what we might term “de minimus” legislative prayers, so long as they are  brief and inclusive; many scholars–including this one–disagree with that admitted exception to the Establishment Clause, but it is what it is.) In Indiana, the prayers had gotten much longer and much more specifically Christian–one pastor, invited to the Speaker’s podium, had led the room in a rousing rendition of “Take a little walk with Jesus.” The District Court ruled that the practice violated the Establishment Clause and must stop, and all hell broke loose, with protestors complaining that religion had been censored.

It hadn’t.

I got several calls from local media, with breathless questions about a group of aggrieved pastors praying together at the back of the chamber–wasn’t that a violation of the Court’s order?

No, it wasn’t.

When a clergyman is invited to pray from the Speaker’s podium, as an official part of the legislative session, that prayer becomes state speech. The Establishment Clause prohibits government from endorsing or sponsoring religion. When individuals gather to pray, the Free Exercise Clause protects them against government interference.

Who is talking, who is praying, who is making the decision–makes all the difference.

The Bill of Rights only restrains government. That makes it pretty important to identify when government has acted.

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