Category Archives: Religious Liberty

Not So Goode

When James Madison, Thomas Jefferson, Benjamin Franklin and the rest of the Founders devised our system of representative democracy, they envisioned a system where persons—okay, men—of temperance, substance and education would hold public office.  

 

They clearly did not envision Representative Virgil Goode.

 

There has been quite a reaction to Representative Goode’s letter decrying the election of Keith Ellison. Ellison, who now represents Minnesota’s Fifth Congressional District, is a Muslim. Goode’s letter criticises Ellison for taking his oath of office on the Koran, and warns darkly that his election is a harbinger of the dreadful things that will happen unless Congress restricts immigration. 

 

Critics of Representative Goode have made two related charges: that he is ignorant, and that he is a bigot.

 

I don’t know whether Representative Goode is a genuine bigot or simply sounds like one. The accusation of ignorance (as opposed, one assumes, to stupidity, which may or may not be equally implicated) rests on several facts that the Congressman is either unaware of, or conveniently overlooking. First, Congressional oaths are not taken on holy texts—neither bibles nor Korans nor any other. Secondly, Congressman Ellison is not an immigrant, nor is he the son, grandson or great-grandson of immigrants. His forebears have been in the United States for 250 years. And thirdly, the United States Constitution explicitly forbids religious tests for office, and protects religious liberty. To put this in language even Representative Goode can understand, liberty means that people are free to hold beliefs other than those held by Virgil Goode.

 

Goode has refused to retract his remarks. Ironically, in a response to the widespread criticism, he reportedly said, “I wish more people would take a stand and stand up for the principles on which this country was founded.” Given the Congressman’s tenuous hold on American history, it’s a remark calculated to make high school government teachers across the nation sob uncontrollably.

 

What seems to have eluded Congressman Goode is the nature of “the principles on which this country was founded.” Even when America hasn’t lived up to those principles—and we frequently haven’t—the  official American vision has been one of a society in which group identity is legally irrelevant, a society where an individual’s conduct is the only proper concern of government. In America, individuals are supposed to be rewarded or punished based upon their behavior. Race, religion, gender and similar markers of group affiliation are simply irrelevant to our legal status. No matter how meaningful those affiliations may be to us personally, the government may not award or restrict our rights based upon them.

The human animal seems to have been hard-wired to see the world as “Us versus Them.”  That’s okay—whether we like to admit it or not, most of us do categorize the world through that lens. The genius of America is that we define “them” by their behavior, not their identity.

 

I hate to tell you this, Congressman Goode, but in my lexicon, you are definitely a “them.”

 

 

 

 

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Suing City Hall

John Hostettler, the always entertaining Congressman from Indiana’s Eighth District, is again promoting legislation to repeal what he calls a “loophole” in the law. That “loophole” allows recovery of reasonable legal fees by people who successfully sue government for violating their religious liberties. Hostettler calls his bill “anti-ACLU” legislation—as though the First Amendment and the ACLU would both disappear if fees weren’t available.

 Using the language of victimization that Christians on the far right are increasingly employing, the bill’s supporters describe the measure as necessary to “protect religious liberty.”

 Hostettler and his cohorts conveniently ignore a few not-so-minor points. The omissions strongly suggest that what they really want is a country where the government gets to decide whose religion is acceptable. (They seem to take for granted that government will choose theirs.)  After all, the fees they want to eliminate are only awarded to “prevailing parties,” that is, to people who have won their lawsuits by proving in court that the government broke its own rules, overstepped its bounds and violated their rights.

 There are several reasons for the laws that allow citizens to recover their attorney fees when they successfully sue the government for civil rights violations. A civil rights action is different from an action between private parties. In a private lawsuit, if you win, you can make the other guy compensate you for whatever damage he caused. In a civil rights suit, a plaintiff who wins doesn’t necessarily even get compensated for whatever harm he has suffered. Sometimes, he doesn’t get anything but a promise by the government agency to stop doing something illegal. But his willingness to hold government responsible is an important tool of public accountability.

 If citizens have no real remedy when government misbehaves, government will misbehave. The Bill of Rights and other civil rights laws aren’t self-enforcing. They are worthless on a dusty shelf in someone’s law library—it takes legal action to make the Establishment Clause or Free Exercise Clause real. And the people who need protection from government are rarely the rich; they are often people who could never afford an attorney on their own.

 It’s hard enough to find a lawyer willing to fight city hall “on contingency” when there is the hope of being paid if they win. Ironically, if fee recovery were eliminated, the only lawyers who would ever bring these cases—other than those hired by the wealthy—would be public interest law firms like the ACLU, which gets most of its support from private donations, or groups like the American Center for Law and Justice, affiliated with Pat Robertson’s Christian Coalition.

 Fee reimbursement laws weren’t passed to benefit lawyers, or the ACLU or the ACLJ—they were passed to help their clients. Congress recognized that government is more likely to run roughshod over the rights of the “little guy,” than it is to mess around with the well-to-do and privileged. The fee statutes level the playing field by allowing us all to keep government in line.

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Rue-minations

In the mid-1990s, the National Constitution Center surveyed national attitudes and beliefs about the Constitution and Bill of Rights. They concluded that Americans “revere” the Constitution—and have virtually no idea what’s in it. 

 

I frequently find myself thinking about that study, because it goes a long way toward explaining why many of our public debates generate more heat than light.

 

Indulge me by taking a little test (no peeking at the answer!) You go to your local license branch when it opens, and wait with a roomful of others while clerks complete opening preparations. Before they begin business, the branch manager asks for silence. A prayer to Jesus comes over the speaker system. The clerks then join in a chorus of a hymn, after which the branch officially opens for business. This is (a) an exercise of free speech rights, or (b) a violation of the Establishment Clause?

 

The answer is (b). Why?

 

The Bill of Rights is essentially a list of things that government may not do. One of those things is “establish” (sponsor, endorse or favor) religious beliefs. Another thing governments may not do is interfere with the private expression—religious or otherwise—of citizens. So the first question a court must ask when a plaintiff is alleging a First Amendment violation is: was this individual expression, which is protected? Or is it government speech, which must follow constitutional rules?

 

In the case of the license branch, it is pretty clear that the manager controls the speaker system and gets to decide who uses it, and for what purposes. The manager is a government employee, the BMV is a government agency, and that makes the opening prayer government speech. If the manager was on a busy street corner praying, government could not properly interfere with his devotions; when he is acting on behalf of the state, it is obliged to do so.

 

People fulminating that the recent ruling about prayer at the statehouse was a violation of “free speech” should read Judge Hamilton’s decision (which—despite the Speaker’s assertions—was based upon unambiguous precedent). As Hamilton points out, citizens cannot just wander up and offer prayers from the Speaker’s podium; it is not a “street corner,” but a venue controlled entirely by government. Since what is said there must be considered government speech, it is subject to rules that could not be constitutionally applied to private speech. One of those rules is that if prayers are to be offered in such an environment, those prayers must be genuinely inclusive. Not just inclusive of Christians (although, according to the Christian plaintiffs, they didn’t even pass that test), but inclusive of all Indiana citizens.

 

I have sometimes used this space to be critical of Governor Daniels, but in this case, I think he got it just about right when he said it was “regrettable” that a compromise could not have been reached without litigation. I’m told the plaintiffs tried.

 

Evidently, the Speaker figured political victories aren’t won in court.

 

 

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Welcome to the Twilight Zone

Sometimes, in their zeal to ensure that gays remain second-class citizens, legislators produce proposals so breathtakingly wacko that you have to wonder whether you have wandered into an alternate universe.

 

Such a proposal has been offered—presumably, with a straight face—by Indiana State Senator Pat Miller, the author and sponsor of a measure entitled (and I am not making this up) “Unauthorized Reproduction.” The bill would require every woman in Indiana seeking to become a mother through “assisted reproduction” to file for the government’s permission. For purposes of this legislation, “assisted reproduction” is not a reference to the sort of “assistance” most of us have reproducing—rather, it is intended to mean the use of in vitro fertilization, sperm donation, or similar technologies.  The bill requires the wannabe mother to file a form called a “petition for parentage.” And only married women would be entitled to be issued a “gestational certificate.” (Ya gotta love the language!)

 

The draft of the law further provides that an “intended parent” who “knowingly or willingly” participates in an artificial reproduction procedure without the express approval of the all-knowing, all-powerful state, will be guilty of a crime—a class B misdemeanor. The doctor who facilitates this heinous crime against humanity will also be subject to criminal sanctions.

 

So, single women who have decided not to wait for Mr. Right are out of luck, along with gay men or lesbians who wish to have children by “unauthorized” means. (In reality, nothing in the bill as drafted, so far as I can see, would prevent a married woman from acting as a surrogate for a gay couple. Nor would anything prevent a “marriage of convenience” if a lesbian desiring a baby could prevail upon a friend to accommodate her. But laws of this sort are rarely effective, and that isn’t really the intent. The intent is to confirm the right of the state to determine what constitutes “normal” and “proper” behavior.)

 

Where does the good senator propose that this intrusion into individual lives stop? What about scofflaws who go to another state for a procedure, or resort to the old turkey baster? Maybe we should require that they abort?

 

The senator’s wacko proposal is a perfectly logical extension of other positions taken by the numerous self-appointed guardians of American “morality” who currently rule us. These are the people who knew better than the doctors who actually examined her whether Terri Shaivo was brain-dead, and who knew better than the multiple judges who actually heard evidence what her wishes were. These are the “compassionate” government officials who know that what poor people really need isn’t food or jobs—it’s prayer and “better values.” These are the lawmakers who know what is best for my children—from the books libraries should loan them, to the internet access they should have, to the content of their biology textbooks, to the sexual orientations of their parents. These are the people determined to use the power of the state to prevent people from sinning. This half-baked bill is part and parcel of the same, single-minded focus on using government to advance fundamentalist religious beliefs.

 

Whatever happened to the philosophy that animated this nation’s founders—their firm belief in restraining the power of government, and separating church from state? And what has happened to the vigilance of free citizens protecting their precious liberties? What can we say about a political environment where a state senator can actually believe that this morally offensive proposal requiring people to petition the government for permission to become parents is an appropriate exercise of government authority?

 

Welcome to the Twilight Zone. 

 

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