First Amendment – Page 11

Those Hits Keep Coming….

Ummn…how much longer must we endure this “short” legislative session?

And why are Indiana lawmakers so spooked by gay people?

This week alone, we’ve heard how the Girl Scouts are “really” in the business of producing commie feminist lesbians. Yesterday (while even Brian Bosma was roaming the Statehouse halls passing out Girl Scout cookies and trying to distance himself from that particular bit of crazy), the Roads and Transportation Committee acted to save Indiana motorists from the calamities that would undoubtedly follow should the Bureau of Motor Vehicles allow the Indiana Youth Group to–gasp!–have a specialty license plate. (IYG supports gay youth. Oh, the shame…)

Now, in all fairness, the issuance of specialty license plates has proliferated, and there undoubtedly need to be some standards and controls. But everyone present understood the real target of the measure that would disqualify groups that “advocate for violation of federal or state law, violation of generally accepted ethical standards or societal behavioral standards or fund individual political candidates.” Furthermore, our moral stewards–er, legislators–will henceforth decide whether groups violate those rules. Can’t leave such pressing issues to the bureaucrats at the BMV.

In an effort to cloak the new rule with a veneer of impartiality, the measure requires–as a condition of approval–a burdensome amount of financial information from the petitioning nonprofits, 500 signatures of Indiana residents, and evidence of a “statewide public benefit from the use of the money the group would receive from the sale of license plates.” And each plate would have to be sponsored by a lawmaker and individually approved.

Because our elected officials don’t have anything more important to do than ensure the moral purity and “public benefit” of messages on Indiana’s license plates.

As this morning’s Star noted, “The changes come in the wake of controversy over the granting of a license plate to the Indiana Youth Group, which supports gay youths. That issue, though, was never discussed Wednesday by the House Roads and Transportation Committee.”

In order to prevent the predictable calamity that would occur if license plates bearing the legend “Indiana Youth Group” were allowed to roam freely over Indiana highways, the committee eliminated plates for the Indiana Association of Chiefs of Police, IU Health, Indiana Soccer, the Zoo, the Marine Foundation and Ducks Unlimited. (Just as well. You can’t ever tell what those ducks might be up to…)

Bottom line to all this foolishness–the legislature wants to pick and choose which organizations’ messages the state will “endorse” by allowing them to sell specialty license plates. The Free Speech clause of that pesky First Amendment says that is exactly what government cannot do. It’s called “content neutrality”–meaning that government can’t allow some messages and disallow others.

If the legislature doesn’t want let IYG operate under the same rules as everybody else, there’s no need for this sort of elaborate kabuki theater.

Just get rid of the whole damn specialty license plate program.

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“Girls” of All Ages

I’ve watched the recent insurance/contraception controversy play out with an increasing sense of unreality. The GOP attack on the HHS rules seemed so transparently political–after all, some 26 states have had similar rules for years, and somehow religiously-affiliated hospitals and universities have lived with them. I chalked it up to the same partisan frenzy that accompanies every single thing this administration tries to do.

And while I still think that’s true of the faux outrage by Boehner and Romney and many others, I have also reluctantly concluded that many of these privileged white males who want to defund Planned Parenthood and outlaw abortion also–unbelievably–want to deny women access to birth control. These advocates of “limited government” really do want to use that government to control women’s bodies. Their reaction to Obama’s masterful “compromise” strips the veneer off their argument that their concern was all about the First Amendment (a “concern” that incidentally demonstrated their lack of understanding of First Amendment jurisprudence).

The GOP argument was that requiring religiously-affiliated employers to pay for health insurance that included birth control violated the employers’ religious liberties. The Obama administration said fine, then the insurance companies will offer that coverage–free–directly to the employees. (The insurance companies have no problem with that, because birth control saves them money; abortions and live births are both far more expensive than contraception.) The religious employers don’t have to pay for the coverage; they don’t even have to tell employees it’s available-the insurance companies will. Problem solved.

Except, evidently, it isn’t solved, because those uppity women will still have access to free birth control. So the attacks–considerably less coherent, but no less furious–continue.

It is absolutely amazing that in the 21st century, there are still men–and some women–who believe women should be kept barefoot and pregnant. It seems unbelievable, but there is no other plausible explanation.

I don’t know if other women are as angry as I am about this contempt for women and our most basic rights. I think many are. My favorite bloggers, Margaret and Helen, certainly are.

All I know is that the 2012 election is increasingly shaping up as a contest between the 21st century and the 1950s, when grown women were “girls” and men made all the rules.

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The Heckler’s Veto?

The Indiana Statehouse has been the focus of a lot of demonstrations over the years, and probably just as many efforts to abort–or at least minimize– those demonstrations. Remember when the KKK came to town? The argument was “We can’t let them use the Statehouse steps–people will riot and it will endanger public safety!” The same argument, of course, was made when Martin Luther King spoke at public venues in the South–public officials argued that he couldn’t be allowed to address the crowds because the local “bubbas” would riot and endanger public safety.

The courts have had a pretty standard response to such arguments: the First Amendment protects all expression, even “the idea we hate.” Neither the government nor the “hecklers” who disagree with the message get to veto other people’s right to speak.

The term “heckler’s veto” is shorthand for the proposition that people who don’t like an idea don’t get to “veto” its expression by threatening the public safety. If there is a genuine concern about safety, courts have uniformly held that the proper response is to address that concern–provide more police, remove weapons, fix rickety stairs or do whatever else it takes to minimize the perceived danger–without denying the speaker(s) First Amendment rights.

Which brings us to the current effort to minimize the message of people opposed to pending Right to Work legislation. If having lots of folks in “the people’s house” is truly dangerous, make whatever alterations/accommodations are necessary to ameliorate that danger. But it’s hard to accept the proposition that this sudden concern about “safety” is isn’t simply a transparently political effort to shut down political opposition, an effort at a somewhat more sophisticated version of the “heckler’s veto.”

Don’t believe that? Let’s engage in a “thought experiment” suggested by my son the other day.

Let’s say a member of the General Assembly offered a bill to provide public funding for late-term abortions, and his colleagues seemed likely to vote for that bill. How many of the legislators who are piously expressing concern for the “public safety” would be working to limit the number of people Eric Miller and his anti-choice cohorts could bring to the Statehouse?

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Stop the Presses! ACLU Supports Christian Athletes

One of the great myths promulgated by the Christian Right is that the ACLU is “anti-religion” and “anti-Christian.” Those bent on demonizing the organization conveniently overlook the many cases in which the ACLU represents the rights of religious folks. When I was Executive Director of Indiana’s ACLU, it used to irritate me that we got no credit for being principled.

That is mostly because so few people understand what the principles are.

A friend just alerted me to a Virginia news item about that state’s ACLU, which has defended the right of student athletes to tape copies of the Ten Commandments to their lockers.

For people who are constitutionally literate, this position hardly comes as a surprise. If a school allows students to post items on their lockers, it cannot dictate the content of those items (other than forbidding obscenity). The school could constitutionally forbid the posting of anything at all, but if it does allow students to express themselves in that fashion, the First Amendment’s Free Speech doctrine prohibits the school from picking and choosing among the messages.

If, on the other hand, a public school posts the Ten Commandments, the school is violating the Establishment Clause of the First Amendment, because the school is an agency of government, and government cannot endorse or sponsor religion.

There’s nothing inconsistent here. The point in both cases is to limit the authority of government.

In our legal system, individuals get to decide what they say and believe, free of government interference. That’s the principle the ACLU is protecting, and it isn’t anti-religious. It’s pro-individual liberty.

Constitution 101

A few years ago, the American Constitution Center conducted a poll to assess the country’s constitutional literacy, and drew a depressing conclusion: Americans revere the Constitution, but have virtually no idea what it says or means.

If that conclusion seems a bit “over the top,” consider some of the more indignant reactions to two recent court opinions applying the religion clauses of the First Amendment. In a case close to home, Judge Sarah Evans Barker ruled that a public high school’s graduating class could not vote to have prayer at its official ceremony. A decision with more national scope held that a Presidential designation of a Day of Prayer is improper. I found the homegrown case particularly ironic, since I invented a virtually identical fact situation a few years ago, and have been using it as part of my midterm exam. Unlike the school officials involved, my students almost always recognize that the issue is not whether students may pray, but whether the government can sponsor prayer.

In a recent column, Russ Pulliam declared that the founders did not want to eject religion from the public square. True. There is an important difference, however, between the public square and the public sector—a difference that evidently eludes many Americans.

There are two religion clauses in the First Amendment. One—the Establishment Clause—prohibits government from sponsoring, endorsing, favoring or otherwise getting involved with religion. The second—the Free Exercise Clause—forbids government from interfering with individuals’ voluntary expression of religion. Together, those clauses send a message to government: hands off.

If you want to take religion into the public square, you are absolutely free to do so. You can post religious verses on your house, wear tee shirts with religious messages, hand out religious handbills on the public streets, place religious messages in newspapers or magazines, or hold revivals in public parks. If you have the means, you can buy a television network and broadcast religious messages 24/7. You can engage in these and innumerable other religious activities in the public square and agencies of government will be constitutionally prohibited from interfering.

If, however, you want the public sector (government) to weigh in—if you want a publicly-owned building to post your bible verse, a government official to endorse or lead your prayer, or a legislative body to ensure that your neighbors are behaving in accordance with your religious beliefs, you have a constitutional problem, because the Establishment Clause prevents any group of citizens, no matter how numerous, from using the power of the state to impose their religious beliefs on other citizens. Your neighbors cannot take a vote to make you an Episcopalian or a Baptist or a Muslim, and the senior class cannot vote to have an agency of government—the public schools—impose a religious observance on those attending the graduation ceremony.

We should all have learned the difference between the public sector and the public square in Government 101. Unfortunately, too many of us skipped class.

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