Wednesday, April 28, 2010

A Short Rant on Religious Freedom and the Courts

Two recent events make it all the more clear that religious liberty for all is in jeopardy. Recent events show that even in civilized, Western countries, basic religious freedom, whether for believers, agnostics or atheists hangs by a series of thin threads. Great Britain and the United States provide the two most recent examples.

The United States Supreme Court ruled 5-4 that game playing with transfers of small plots of land allow the federal government to endorse specific religions. Readers are likely familiar with the ongoing case of the war memorial cross in the Mojave desert. The federal government attempted to transfer the land just surrounding the cross to a private veterans group to prevent any issues with the establishment clause. The court decided not just that this game playing was acceptable but that it probably wasn't even necessary. Justice Kennedy wrote:

A Latin cross is not merely a reaffirmation of Christian beliefs. Here, a Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.
Because of course, the fact that fallen soldiers of other religions are buried with other symbols is of course besides the point. And the fact that the commonality of the cross is solely because the US is a majority Christian nation is besides the point. And the fact that some (small) Christian groups are actually uncomfortable with the cross as a religious symbol is also besides the point.

But not to worry, since while the US Supreme Court is busy whittling away at basic separation and church and state, the British are busy destroying the rights of people to say things which offend religion. Apparently leaving anti-religious tracts around in the wrong places in England can get you convicted. After leaving anti-religious tracts in an airport prayer room, Harold Taylor received a six-month suspended sentence and is now not allowed to carry anti-religious leaflets in public. As far as I can tell, the tracts left by Taylor were deeply unfunny cartoons that wouldn't have convinced anyone of anything. Taylor probably needs a few lessons in how to be funny and not just annoying(Jennifer McCreight could likely teach him a thing or two). But that shouldn't be a criminal offense either. At least Taylor's situation would still be unambiguously unacceptable in the United States.

These events highlight how important it is that Obama's next Supreme Court nominee be a strong supporter of free speech. Unfortunately, his previous nominee, Sotomayor, has a mixed record on such issues. Let's hope the next one is better.


Anonymous said...

If I recall correctly, Scalia's opinion on the first amendment is that the Constitution permits government to prefer religion to non-religion. This troubles me. Non-religious Americans are not guests in his country.

Khagan Din said...

I am quite fond of the separation of church and state, but the "hanging by a thread" argument doesn't quite wash.

On the one hand, just because reasonable people might think that a government display of a cross was intended to be a government endorsement of mainstream Christianity doesn't mean that the federal government has in fact done so.

As the news article you linked to points out, there was a valid secular purpose: honoring the dead.

One might object that the government should find more secular ways to honor the dead, but that objection, in general, has already carried the day! New war monuments are not conspicuously marked with religious symbols except for small, individual symbols associated with individual soldiers who actually affiliated themselves with the respective religions.

In the case of a cross that was erected 70 years ago, it probably makes sense for the government to just sell the land under the cross and put up a plaque saying that the cross is just there to honor the dead. There's no trickery here; nobody is trying to fool people into thinking that the government is endorsing Christianity. On the contrary, the government "required the installation of a plaque dissociating the statue from the federal government," and the plaque must provide "'a clearly visible' statement of the memorial's secular origin and purpose."

Likewise, the news source you link to for the British horror-fest indicates that the perp was awarded an ASBO, or Anti-Social Behavior Order.

This is a device used to tyrannically curtail British expression and behavior in all walks of life, and has very little to do with religion per se. I don't like it, but it's hardly evidence that the Brits are on the verge of taking up Cromwell's civil wars again.

Joshua said...

Khagan Din,

Those are valid points. This rant may have been a bit premature and not as well thought out as it should have been. In fact the Roberts court has been pretty good on free speech issues and would likely never do something like what has occurred in the British case.

Regarding, the ASBO, while it is true that those create a problem in general, in the vast majority of ASBO cases, there is a crime committeed and the ASBO is then used to further restrict their behavior (rather than go through a full criminal prosecution). And that's part of what happened here- the crime in question was giving offense to religon. That's not a good situation.

Also regarding the cross case, Kennedy's opinion doesn't say that simply selling the land is what makes the situation ok, but rather strongly implies that crosses can still be used in the future as secular symbols. That's not good. The sale issue is simply icing on the cake because it means that the government can effectively avoid being accused of endorsing a religion by selling a tiny plot of land. Can for example the government sell a plot of land that is say a 5-5 foot area in a government building to a private group that sticks a crucifix up?

Khagan Din said...

"Can for example the government sell a plot of land that is say a 5-5 foot area in a government building to a private group that sticks a crucifix up?"

No, nothing in the opinions supports that outcome or even hints at it. If you read Alito's opinion, the Sunrise Rock Mesa or whatever it was is in the middle of an uninhabited desert that the government routinely warns against traveling in. The cross was technically on federal land, but half the state is on federal land out West, and the borders aren't well-marked. 70 years went by before the cross was challenged.

There is nothing in the opinions that would support a leap from "you need not entirely reverse a 70-year tradition of leaving a cross on land that is 'federal' in the sense of being in the public domain" to "you may freely cause new crosses to be erected in federal buildings that are 'federal' in the sense of being outposts of specifically governmental power and authority."

The dissent claims that the cross was made into a national monument by act of Congress, but (1) this occurred only after 70 years of private use, (2) said act was arguably abrogated by the new act that provided for the land swap, and (3) it's hard to understand how a worthless piece of remote desert can be a national monument in the same sense that the National Mall or a federal courthouse is a national monument, no matter what Congress declares it to be in an undebated joint resolution.

Joshua said...

Remoteness should not be relevant. A cross in the desert isn't any different from a cross on main street. If there's a violation of the Establishment clause it doesn't matter how small it is.

And yes, joint resolutions have force. When land is owned by the federal government it is federal land. When congresses calls that land to be a national monument, it is a national monument. That doesn't seem to a complicated issue. The historical details of how it got to that point are not very relevant.

Khagan Din said...

I strongly disagree with just about everything you said in your most recent comment.

It's vaguely plausible to insist that federal land is federal land when you live in a big Northeastern city and all federal land is clearly devoted to some serious federal purpose.

It's not at all plausible to equate desert wastes with courthouses when you actually go wander the open plains of the West and see how little it means for land to be federal there. Private mining, private ranching, private road-building, and private recreation all take place on federally owned land without so much as a by-your-leave from the government, and that's just the legal stuff. It was even worse in the 30s, when the cross was erected.

I grant that there's no such thing as a permissibly small violation of the establishment clause, but for a private individual to erect a cross on federal land isn't even a small violation -- it's just something people do, of zero constitutional importance.

You say that a joint resolution can be binding, but that's sort of beside the point. Binding on whom, exactly? Will Congress hold me in contempt and arrest me for failing to believe that the cross is part of a national monument? Without actions or status changes that attach to the joint resolution's declaration, there's no there there. The land was NOT attached to the Park Service via the Monuments and Antiquities Act; it was still under the jurisdiction of the Bureau of Land Management, which handles the relatively worthless parts of the public domain. For Congress to "declare" that land is a monument, even in a "binding" resolution, does exactly as much as a Congressional declaration that March is "Yay We Like Books Month," to wit, nothing.

Congress did block appropriations to remove the cross, but again, this is a non-action. Presumably if the people who put up the cross in the first place wanted to remove it, they could still do so. Failing to provide funds to neutralize the religious expressions of squatters on federal land, as long as it is done relatively equally toward all squatters, is not a violation of the establishment clause. There is no allegation that Congress is systematically appropriating funds to remove the memorials left by atheist or Hindu squatters but not the memorials left by Christian squatters. Congress is not required by the Constitution to institute and pay for a squatter-sculpture-removal program simply because some large fraction of squatters on federal land happen to be Christians.

If the issue appears uncomplicated to you, it may be because you are erroneously applying a "taboo" standard for the 1st Amendment. The government is not and never has been required to avoid all incidental association with religion, as if religion were somehow taboo. The government is prohibited from making an establishment of religion, and the presence or absence of establishment is usually a fact-intensive issue.

One should be careful before claiming that issues which split the Supreme Court 5-4 are "uncomplicated." The Court's Justices are usually biased and often wrong, but they are rarely "irrelevant."

Joshua said...

Valid points. I'll need to think about this more.