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More on the Establishment Clause

From the recent edition of the Economist, the following piece should be familiar to all of you.  Should religious material be permitted to be placed in government owned facilities?

Atheists complain about free Bibles in the wilderness

YOU’LL find one in almost any hotel room in America, usually in a nightstand drawer: a Bible, donated by the Gideons, an evangelical group that puts free Bibles in hotels, hospitals, prisons and other places where they might “reach the lost”. Ed Buckner found one in his cottage at Amicalola Falls State Park and Lodge, a Georgia state park. Then he found another. And another, and another. The final tally was nine, enough for all but the largest families.

Many Georgians would have appreciated the reading material, but Mr Buckner did not. He is a former president of American Atheists (AA). His complaint about the “constitutionally improper” literature in his cabin reached the officials who oversee Georgia’s state parks, who ordered them removed. Shortly thereafter Nathan Deal, the governor, overruled them. The Bibles were donated, not bought by the state, he noted, adding that “a Bible in a bedside table drawer” does not constitute “a state establishment of religion”.

Besides, said Mr Deal, “any group is free to donate literature.” AA took him at his word. It has offered books by polemical atheists such as Christopher Hitchens and Richard Dawkins, as well as Madalyn Murray O’Hair, AA’s founder, and Ibn Warraq, a critic of Islam, to be placed in Georgia state-park cottages.

Americans have long fought over what the first amendment’s promise, “Congress shall make no law respecting an establishment of religion”, means in practice. At least two establishment-clause cases are pending before the Supreme Court. Elmbrook School District v Doe asks whether the first amendment bars a state school from holding public functions in a church building for purely secular reasons. (For example if it is cheap, nearby, roomy and equipped with a wheelchair ramp.) The court has yet to accept or reject that case.

It has agreed to hear Town of Greece v Galloway, which concerns the prayers with which a town board in upstate New York opens its meetings, next autumn. Legislative prayer itself is not unconstitutional: the House and Senate both have Christian chaplains, paid from public funds, and in 1983 the court held that such prayers are “part of the fabric of our society”. But a lower court held that because the prayers in Greece were entirely Christian and received with great enthusiasm by town-board members, they “associated the town with the Christian religion”, in violation of the first amendment.

Establishment-clause jurisprudence is as easy to understand as the Book of Revelation. In 1989 the Supreme Court held that a Nativity scene on public property violated the first amendment but a Christmas tree and menorah did not. In 2005 it ruled that framed copies of the Ten Commandments in courthouses and public schools in Kentucky were unconstitutional but that a giant granite monument of the Ten Commandments outside the Texas capitol was just fine. Go figure.

In Georgia, meanwhile, atheists await guidance from the governor on how to get their tracts into cabins. Holidaymakers hoping to curl up with a free copy of “The God Delusion” may be disappointed, however. Mr Deal said he would accept such books but quipped to a reporter from the Atlanta Journal-Constitution that he “cannot guarantee [their] safety”.

Does the government record your telephone calls?

In this piece from last week on CNN, a former FBI counterintelligence officer suggests that all of your telephone calls are recorded… or at least that they could be accessed at a later date by the government if it were investigating you.  Does this concern you, from the perspective of civil liberties and privacy?  Does this violate individuals’ 4th amendment “right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure”?  Or should the government be able to access any conversation you have — on the telephone or online — in conjunction with a terrorism investigation?

Should suspected terrorists have Miranda rights?

So there were/are three options for dealing with the suspect who is now in custody in conjunction with the Boston bombings:
(a)  Treat him like any other individual in custody; read him his Miranda rights and then question him.
(b)  Invoke the “public safety exception” and question him.  Then, at some point, read him his rights.
(c)  Treat him like an enemy combatant and keep him him custody until the war on terror ends, as suggested today by Senators McCain and Graham.

Watch the following and share your thoughts.

States’ rights and religion

So the following isn’t big news, but it’s of interest because of its relevance to the cases we have studied.  Note the precedents that are referenced!

Could North Carolina actually declare a state religion?
First Amendment, Shmirst Amendment
By Keith Wagstaff | 1:07pm EST
Rep. Harry Warren, one of the two North Carolina lawmakers who filed a bill to declare a state religion.
Rep. Harry Warren, one of the two North Carolina lawmakers who filed a bill to declare a state religion.

As amendments go, “Congress shall make no law respecting an establishment of religion…” is kind of a biggie. Don’t tell that to the North Carolina lawmakers behind the Defense of Religion Act.

The bill asserts that “the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.”

According to The Huffington Post, the bill “was filed in response to a lawsuit to stop county commissioners in Rowan County from opening meetings with a Christian prayer,” leading us to assume that the religion they want to establish isn’t Duke basketball. Could legislators in North Carolina actually pull this off?

It’s not likely. Rick Ungar of Forbes points to Lemon v. Kurtzman, the U.S. Supreme Court case that established the “Lemon Test” for whether a state law is violating the First Amendment:

The law or state policy must have been adopted with a neutral or non-religious purpose.
The principle or primary effect must be one that neither advances nor inhibits religion.
The statute or policy must not result in an “excessive entanglement” of government with religion. [Forbes]

Declaring an official religion doesn’t seem to pass the test. Not that states haven’t tried to exempt themselves from federal law before.

“We saw this in the aftermath of Brown v. Board of Education,” Michael Bitzer, a professor at Catawba College, tells “The belief is that the states hold more power than the federal government. If the federal government does something, the states can simply ignore it.”

Philip Bump of The Atlantic Wire says the Republicans are pinning their hopes on the interpretation that “since the Tenth Amendment says that anything not delegated to the federal government by the Constitution becomes the province of the states, that means North Carolina can determine for itself what is and isn’t unconstitutional.” This strategy, he notes, has been tried by states many times before and has always failed.

The bill might have had a chance, Ian Millhiser of Think Progress says, if the Fourteenth Amendment hadn’t been ratified in 1868:

While the early Constitution envisioned “rights” as little more than a battle between central and local government, the Fourteenth Amendment ushered in a more modern understanding. Under this amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” nor may any state “deprive any person of life, liberty, or property, without due process of law.” [Think Progress]

Don’t worry, if the North Carolina lawmakers behind the bill fail, they can always go the Texan route and try to secede.

Gideon v. Wainwright 50 years later

From today’s New York Times, the following is an excerpt from a story that describes the reality of one’s right to an attorney.  Note that the right doesn’t extend to civil trials, among others.


Right to Lawyer Can Be Empty Promise for Poor


ADEL, Ga. — Billy Jerome Presley spent 17 months in a Georgia jail because he did not have $2,700 for a child support payment. He had no prior jail record but also no lawyer. In Baltimore last fall, Carl Hymes, 21, was arrested on charges of shining a laser into the eyes of a police officer. Bail was set at $75,000. He had no arrest record but also no lawyer. In West Orange, N.J., last summer, Walter Bloss, 89, was served with an eviction notice from the rent-controlled apartment he had lived in for 43 years after a dispute with his landlord. He had gone to court without a lawyer.

Fifty years ago, on March 18, 1963, the Supreme Court unanimously ruled in Gideon v. Wainwright that those accused of a crime have a constitutional right to a lawyer whether or not they can afford one. But as legal officials observe the anniversary of what is widely considered one of the most significant judicial declarations of equality under law, many say that the promise inherent in the Gideon ruling remains unfulfilled because so many legal needs still go unmet.

Civil matters — including legal issues like home foreclosure, job loss, spousal abuse and parental custody — were not covered by the decision. Today, many states and counties do not offer lawyers to the poor in major civil disputes, and in some criminal ones as well. Those states that do are finding that more people than ever are qualifying for such help, making it impossible to keep up with the need. The result is that even at a time when many law school graduates are without work, many Americans are without lawyers.

The Legal Services Corporation, the Congressionally financed organization that provides lawyers to the poor in civil matters, says there are more than 60 million Americans — 35 percent more than in 2005 — who qualify for its services. But it calculates that 80 percent of the legal needs of the poor go unmet. In state after state, according to a survey of trial judges, more people are now representing themselves in court and they are failing to present necessary evidence, committing procedural errors and poorly examining witnesses, all while new lawyers remain unemployed.

“Some of our most essential rights — those involving our families, our homes, our livelihoods — are the least protected,” Chief Justice Wallace B. Jefferson of the Texas Supreme Court, said in a recent speech at New York University. He noted that a family of four earning $30,000 annually does not qualify for legal aid in many states.

James J. Sandman, president of the Legal Services Corporation, said, “Most Americans don’t realize that you can have your home taken away, your children taken away and you can be a victim of domestic violence but you have no constitutional right to a lawyer to protect you.”

According to the World Justice Project, a nonprofit group promoting the rule of law that got its start through the American Bar Association, the United States ranks 66th out of 98 countries in access to and affordability of civil legal services.

“In most countries, equality before the law means equality between those of high and low income,” remarked Earl Johnson Jr., a retired justice of the California Court of Appeal. “In this country for some reason we are concerned more with individuals versus government.”

With law school graduates hurting for work, it may appear that there is a glut of lawyers. But many experts say that is a misunderstanding.

“We don’t have an excess of lawyers,” said Martin Guggenheim, a law professor at New York University. “What we have is a miserable fit. In many areas like family and housing law, there is simply no private bar to go to. You couldn’t find a lawyer to help you even if you had the money because there isn’t a dime to be made in those cases.”

Even in situations where an individual is up against a state prosecutor and jail may result, not every jurisdiction provides lawyers to the defendants. In Georgia, those charged with failing to pay child support face a prosecutor and jail but are not supplied with a lawyer.

The Fourth Amendment and Government Surveillance

Today’s Supreme Court decision revolved around “standing” (whether anyone was hurt by the law) but it also raises broader issues along the lines that we discussed in class.  Under what circumstances should the government be permitted to eavesdrop on Americans’ telephone calls without a warrant to do so?

Supreme Court Rejects Challenge to Surveillance Law


WASHINGTON — In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Tuesday turned back a challenge to a federal law that authorized intercepting international communications involving Americans.

Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. Their fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.

Justice Alito also rejected arguments based on the steps the plaintiffs had taken to escape surveillance, including traveling to meet sources and clients in person rather than talking to them over the phone. “They cannot manufacture standing by incurring costs in anticipation of non-imminent harms,” he wrote of the plaintiffs.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined the majority opinion.

In dissent, Justice Stephen G. Breyer wrote that the harm claimed by the plaintiffs was not speculative. “Indeed,” he wrote, “it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined his dissenting opinion.

The decision, Clapper v. Amnesty International, No. 11-1025, probably means the Supreme Court will never rule on the constitutionality of the law, a 2008 measure that broadened the government’s power to eavesdrop on international communications. The law, an amendment to the Foreign Intelligence Surveillance Act, was passed after the 2005 disclosure of the Bush administration’s secret program to wiretap international communications of people inside the United States without obtaining court warrants. The electronic spying, intended to help pursue terrorists, began after the attacks of Sept. 11, 2001.

The 2008 law was challenged by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantánamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment by allowing the government to intercept their international telephone calls and e-mails.

In 2011, a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, ruled for the plaintiffs on the threshold question of whether they had standing.

Judge Gerard E. Lynch, writing for the court, said the plaintiffs had shown that they had a reasonable fear that their communications would be monitored and had taken “costly measures to avoid being monitored.”

The full Second Circuit declined to rehear the panel’s ruling by a 6-to-6 vote.