Category Archives: Constitution

Chik-fil-A

Let me be clear about my personal reaction to Chik-fil-A’s corporate homophobia–expressed by its financial support for anti-gay organizations and most recently by the “guilty as charged” statement of its President. I do not patronize Chik-fil-A, and I encourage my friends and family to spend their money elsewhere. When the occasion arises, I communicate my disapproval of the corporation’s message and my hope that consumers who agree with me will communicate theirs by eating elsewhere.

But I do not applaud efforts by elected officials to treat the chain differently than any other business because of its message and beliefs.

When I was at the ACLU, the Klan was denied the right to hold a rally on the Statehouse steps. Other organizations routinely were granted permission to do so. We represented the KKK– the Jewish Executive Director (me), our African-American legal secretary, and a gay co-operating (volunteer) attorney. It certainly wasn’t because any of us agreed with the Klan’s odious message. It was because we knew that the government that could deny equal rights to the Klan today could just as easily deny equal rights to us tomorrow.

In our system–a system far too many of us don’t understand–the government has an obligation to remain neutral about ideas, even–as Justice Holmes memorably wrote–about “the idea we hate.” If Chik-fil-A, or the Klan, or the ACLU wants to open a store or office somewhere, and are otherwise following the rules, their views should not be part of the decision-making process.

The gay community, especially, should understand the importance of government neutrality. Until very recently, government officials could be counted on to exercise their powers to suppress, rather than support, GLBT folks. The social change we rightly celebrate–where a Chik-fil-A is roundly condemned for anti-gay bias–would have been impossible but for the free marketplace of ideas that the First Amendment protects.

In our system, government stays neutral so that individuals don’t have to. That means we each have an obligation to be active citizens and intentional consumers. Moral bullies want government to fight their ideological battles for them; free citizens fight their own.

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Thank You for Proving My Point….

It seems that each new day brings new evidence that too many Americans haven’t the foggiest idea what’s in the U.S. Constitution or what its provisions mean.

Exhibit #1: the large cross erected on public property in Dugger, Indiana. The huge cross with “Jesus Saves” prominently printed on it has been challenged by Americans United for Separation of Church and State. The town fathers–evidently recognizing a loser when they see one–agreed to move it rather than spending tax dollars on expensive and hopeless litigation. But residents are up in arms. My favorite quote came from the fellow who said people who were offended could just look elsewhere.

How much do you want to wager that he’d feel differently if the symbol on public property praised Satan? or Allah? or Karl Marx?

This is a recurring battle. As the courts routinely point out, the rules are pretty clear: government cannot sponsor or endorse religion. Government cannot sponsor or endorse atheism, either. Government must stay neutral when it comes to the expression of political or religious beliefs. Allowing a religious symbol on public property is an impermissible endorsement of that religion–exactly the sort of favoritism the Establishment Clause of the First Amendment forbids.

This sort of conflict is easy enough to resolve. Move the cross to private property. People will still see it.  Folks who reject this relatively simple fix are really giving away the game–no matter what they claim, they don’t just want people to see their message. They want government to endorse their message. They want special status and recognition for their religious beliefs.

Exhibit #2. Micah Clark. Again.

The AFA has its panties in a bunch–as usual–because the Indiana Chamber of Commerce is considering opposing the mis-named “Marriage Protection Amendment.”

Why oh why would the Chamber “want to see marriage unraveled and destabilized” in Indiana? Micah wants to know. Here’s a clue, Micah–that “destabilization” hasn’t happened anywhere that same-sex marriages are legal. Quite the opposite, in fact–Massachusetts, the first U.S. state to recognize same-sex unions, has one of the lowest divorce rates in the country.

Leaving aside the hysterical rhetoric and tortured “evidence” in the AFA’s Weekly Email, one sentence leapt out at me: “It is the people of Indiana who should decide on marriage.”

No, Micah, it isn’t.

In our system, we don’t get to vote on other people’s fundamental rights. We don’t get to vote to segregate black people, we don’t get to vote against interracial or interfaith marriages. We don’t get to vote to abolish jury trials, or to override restrictions on search and seizures. We don’t get to vote to make people Baptists or Episcopalians.

Justice Jackson said it best, many years ago, in West Virginia Board v. Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Maybe you don’t agree that people who are different from you should have the same civil liberties and rights that you enjoy. Fine. Don’t agree with it. But it is the law of the land, and you really ought to know that.

I wonder what new evidence tomorrow will bring….

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Constitutional Oblivion

I know I’m a broken record when it comes to the appallingly low level of civic literacy in this country, but bear with me for one more installment of “Is it really possible to be that ignorant?” 

Valarie Hodges is an actual, nonfictional member of the Louisiana legislature, which means Louisiana citizens elected her to that body. She enthusiastically supported Governor Bobby Jindal’s school voucher program; however, it turns out that her support rested on the premise that school vouchers could only be used for Christian schools.  As she explained her position,  “I actually support funding for teaching the fundamentals of America’s Founding Fathers’ religion, which is Christianity, in public schools or private schools. I liked the idea of giving parents the option of sending their children to a public school or a Christian school.”

Where to start?

There’s the bad history, of course. While the nation’s founders were all nominally Christian–Protestant, to be more specific–their actual beliefs varied. Some were traditional believers. Many were Deists. Jefferson famously re-wrote the bible to eliminate all the metaphysics (pardon me, Valerie–that means ‘the God stuff’), leaving only the moral instruction. Adams opined that the attribution of divinity to Jesus was a great heresy. Franklin was openly skeptical–and, unlike Valerie–famously tolerant.

Then there’s the Constitution. People we elect to public office take an oath to support the Constitution of the United States. Is it too much to expect that they have some minimal acquaintance with that document?

Read together, the religion clauses of the First Amendment are a prescription for government neutrality in matters of conscience. Government is prohibited from favoring one religion over another, or religion over non-religion. That’s what we mean by separation of church and state–government, even in Louisiana, has to keep its grubby hands out of our souls. From the tenor of her remarks, its safe to assume that Valerie had never encountered references to or explanations of the Establishment Clause or the Free Exercise Clause, and would be surprised to learn that they prohibit teaching Christianity in public schools, let alone authorizing vouchers to be used only in Christian schools.

But finally, there’s reality. Are there no non-Christians in Louisiana? I can understand why there might not be a Buddhist Temple or Hindu shrine close by, but really, are there no synagogues or mosques? Has Valerie ever met an atheist? A Unitarian? Does she watch television or read news on the Internet? It is incredible that she seems never to entertained the possibility of neighbors who do not share her particular beliefs.

I hope–I believe–that Valerie is an outlier, that her incredible ignorance of the law and history and composition of her own country is unrepresentative. But we have a lot of anecdotal and survey data that suggests she isn’t as much of an anomaly as we might hope.

I’m not sure what we do about people like Valerie, or about the people who educate and elect the Valeries of our nation, but several of us at IUPUI intend to find out.

Tomorrow, I’ll explain how.

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Reconsidering ID

I’ve always been reflexively opposed to the notion of a national ID card. Call it the civil libertarian in me, but such an identifier raises visions of police states past and privacy intrusions future. That said, I’ll admit this is not an issue I’ve really thought through–my distaste is more visceral than intellectual.

So I was grudgingly persuaded by Bill Keller’s column in this morning’s New York Times.  Keller’s point of departure was the recent Supreme Court decision that struck down most of the Arizona immigration law, but left intact the right of police to demand “papers” from people being detained for other reasons. As he pointedly asked, “What ‘papers’?” What sorts of identification do any of us carry that proves we are citizens? Wouldn’t employers and police officers be better served by the existence of a standard ID?

Keller acknowledges the privacy concerns.

 “The trick, and I won’t pretend it’s always easy, is to distinguish the reasonable and constructive from the invasive and excessive. We want the sales clerk at the Gap to know our credit card is good, but not to have access to our whole credit history. We want our doctors to share our health histories with one another, but probably not with our employers. We may or may not want retailers to know what kind of books we read, what kind of car we drive, where we are thinking of traveling. We may or may not want those who follow us on the Web to know our real-time location, or our real name.”

“This will not satisfy those who fear that any such mandate is potentially “a tool for social control,” as Chris Calabrese of the A.C.L.U. put it. But the only way to completely eliminate the risks of a connected world is to burn your documents, throw away your cellphone, cancel your Internet service and live off the grid.

As it happens, the proposal I described is already on the table. Senators Charles Schumer and Lindsey Graham included it in their menu for comprehensive immigration reform in 2010. For obvious reasons, they didn’t call it a national ID. They called it an “enhanced Social Security card.”

Like just about everything else, immigration reform is stuck in the mangle of election-year partisanship. And if Congress ever does revert to the business of solving problems, there should be many parts to a humane, sensible immigration bill — including expanded legal immigration and a path to citizenship for many of those already here. But a fraud-proof, limited-use national identification card is an essential part of the package.

Then the Arizona police can go back to doing their real jobs.”

I won’t say his argument entirely persuades me–but it’s undeniably logical, and worth more consideration than I have previously given the matter. Read the whole column, and see what you think.

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I’m Conflicted

A recent decision by the Illinois Attorney General has thrown me into one of those “On this hand…but on the other hand..” internal conflicts.

The Attorney General and another Illinois prosecutor have announced that they will not defend that state’s ban on same-sex marriage against a challenge being brought by couples whose application for marriage licenses were denied. Their reasoning was that they believe the ban to be unconstitutional under the equal protection clauses of both the state and federal constitutions.

I agree with that conclusion, but that doesn’t resolve the conflict.

The duty of an Attorney General is to defend the laws of his jurisdiction. It’s the duty of the judiciary to decide whether those laws are proper. Separation of powers is one of the most fundamental elements of American government, and our courts depend on the adversarial system to sharpen clarify the questions presented. And even criminals and legislators (whose ranks are not always as distinguishable as we might wish) deserve representation. It is the job of Attorneys General to defend laws whether they personally believe those laws are fair or prudent.

On the other hand, criminal prosecutors who proceed with cases against people they know to be innocent violate their oaths of office, and their duty to justice, and we rightly condemn them. They aren’t duty bound to prosecute everyone initially charged with a crime; we expect them to apply their best judgment and to proceed only when there is a substantial likelihood of guilt.

Our elected officials are sworn to uphold the Constitution. When they are convinced that a particular enactment cannot survive constitutional scrutiny, must they spend time and resources defending it? What is the weight of evidence required before such a decision is appropriate?

There are also questions of credibility: wouldn’t the people of Illinois be more likely to accept a decision by a court than one by the state’s chief lawyer?

I agree with the Illinois AG about the ban’s unconstitutionality. I’m not entirely sure I agree with her decision to forgo its defense.

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