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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”.

Bush v. Gore, according to O’Connor

The following blog post from the NY Times highlights retired Justice Sandra Day O’Connor’s recent comments on the Bush v. Gore decision.  I have deleted the editorial content of the post because I want to hear your opinion.  Was SCOTUS’s  agreement to hear the case a good decision?  And what about the decision itself?  Is O’Connor’s after-the-fact commentary appropriate?  Was the Court’s decision a good one?

O’Connor Regrets Bush v. Gore

Former Supreme Court Justice Sandra Day O'Connor testified before the Senate Judiciary Committee on July 25, 2012. T.J. Kirkpatrick/Getty ImagesFormer

Now she tells us. More than 12 years after the fact, retired Justice Sandra Day O’Connor said she believes it was a mistake for the Supreme Court to take Bush v. Gore and anoint George W. Bush as president of the United States.

“It took the case and decided it at a time when it was still a big election issue,” Justice O’Connor told the Chicago Tribune editorial board on Friday. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”

She continued: “Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

The result, she allowed, “stirred up the public” and “gave the court a less than perfect reputation.”

Justice O’Connor’s comments, as fascinating as they are, have to set some kind of record for detachment (she calls the court on which she sat for 25 years “it” — avoiding the more apt “we”) and also for understatement.

Granted, we don’t know for sure whether Justice O’Connor wanted to take Bush v. Gore. Only four justices have to agree to hear a case. But we do know that she sided with the majority on the actual decision, which stopped the recounting in Florida and gave a one-vote majority in the Electoral College to the man who lost the national popular vote.

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 Voting Rights Act of 1965

The following two videos give you some background on the Voting Rights Act dispute that was argued in front of the Supreme Court last month, and then give you a taste for the two sides of the argument on whether Section 5 of the Act is unconstitutional.  In your view, should the Court uphold Section 5, or not?

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.

Recess Appointments

A federal appeals court last week ruled that recess appointments, as practiced by presidents for many years, are unconstitutional.  Do you agree or disagree with the court’s decision?  Will Republicans who praised this ruling come to disagree with it in the future?

Chafin v. Chafin

The New York Times weighed in today on the Supreme Court case that we heard last Wednesday in Washington — interesting, because it was not a well publicized case.  But here it was on the editorial pages of the Times this morning.  Why do you think the Times decided to write about this topic?

Chafin v. Chafin

An international treaty called The Hague Convention on the Civil Aspects of International Child Abduction sets rules about where child custody disputes should be resolved when the parents are in different countries. The treaty puts a premium on swift resolution, but a speedy ruling by a trial court to let one parent take the child overseas without an opportunity for the other parent to appeal can mean a mistaken ruling stands unfairly.

That is the issue in Chafin v. Chafin, which the Supreme Court heard argument on last week.

Sgt. First Class Jeffrey Lee Chafin, an American, married Lynne Hales Chafin, a British citizen, in Scotland in 2006. Their daughter, E.C., was born the next year in Germany, where he was stationed. Mrs. Chafin took her to live in Scotland while the sergeant served in Afghanistan.

The family was reunited in Alabama when he was transferred there, but in 2010 he filed for divorce, temporary custody of E.C. and a restraining order against Mrs. Chafin, who had been arrested for domestic violence. She was deported, and, under The Hague treaty, she asked a federal trial court in Alabama to let E.C. return to Scotland so a court there could decide which parent should get custody. The court granted her request.

Sergeant Chafin’s brief said that he immediately asked the district court to stay its order pending appeal. But the court denied that motion and issued a one paragraph order permitting Mrs. Chafin to take E.C. to Scotland that same day, and she did. When the sergeant appealed the trial court ruling, the United States Court of Appeals for the 11th Circuit said there was no longer a case to decide since E.C. was gone. Yet the Fourth Circuit, reviewing a similar case several years ago, ruled that removal of the child did not make the case moot.

Chief Justice John Roberts Jr. sensibly observed that “the best thing is to hold things up briefly, so that the child doesn’t go overseas and then have to be brought back.” If there is no appellate review, he said, the message for other parents will be, “Get on the first plane out and then you’re home free.” The Supreme Court should support the principle that any losing parent has a right to appeal.