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Library Bans Employees from Wearing Religious Jewelry:

In Kentucky, yet, not exactly what you'd think of as a hotbed of antireligious sentiment. Yet it's true — while there's plenty of hostility to atheists, and some legal discrimination against atheists and atheist speech, there've also been plenty of cases where the government has unconstitutionally tried to suppress religious speech.

The most recent one I've read involved the Logan County Public Library in Kentucky. At first, the library just banned its employees from wearing "clothing depicting religious, political, or potentially offensive decoration." This might be permissible, I think, because it doesn't single out religious advocacy for worse treatment than other ideological advocacy (so there's no unconstitutional discrimination against religion) and because it restricts a form of speech that may well prove disruptive of the library's function: Such T-shirts tend to be somewhat in-your-face, and are not unlikely to alienate quite a few patrons precisely because of the prominence of the message. I'm not positive that the rule is constitutional (though a neutral rule that required more professional dress likely would be), but at least there's a decent case for it.

But then the library changed the policy to prohibit religious ornaments as well, and applied it to bar an employee from wearing a cross on her necklace. (Obviously the same policy would also ban stars of David and other religious symbols.) The library's justification? "[T]he policy is necessary to protect librarian impartiality on issues that could be the subject of patron inquiry," and "the policy is required to avoid the appearance of religious favoritism and to avoid violating the state's duties under the Establishment Clause."

Really? Aren't library patrons able to realize that the clothing and jewelry that one wears — especially among librarians who pretty clearly don't have fixed uniforms — is usually selected by the wearer as a citizen, and not by the government? When I see a Kentucky state employee wearing diamond earrings, I don't think the state is endorsing De Beers; when I see her wearing a cross necklace, I assume she's the one who chose it, just like she chose her other jewelry.

As to "librarian impartiality," surely we all know that librarians have beliefs about controversial topics. We may hope that they set aside those beliefs in some measure when asked for impartial advice; we may expect that they don't set them aside entirely; but their potentially judgment-clouding beliefs are present whether or not they wear religious jewelry. (Of course, if you take the librarian impartiality argument seriously, you'd have to refuse to hire anyone who even dresses or wears his or her hair in religiously distinctive ways; no orthodox Jewish men with yarmulkes, no Sikhs wearing turbans, no Muslim women wearing distinctively Muslim garb.)

Finally, though the line between T-shirts and jewelry is one of degree, symbolic jewelry tends to be much less obtrusive, and also much more commonplace and therefore familiar even in quite professional circles. Whatever professionalism objections there may be to the T-shirts, it seems to me that they don't apply to the jewlery. The court quite rightly concluded that the library's concerns about any possible disruption or even controversy were purely "speculative and hypothetical." The government acting as employer must have some authority to control on-the-job expression by its employees; yes, the answer might well be different for T-shirts and for jewelry, for pins saying "Fuck You" and for cross necklaces. But that there is some such necessary authority doesn't mean that the government should have absolute authority to suppress all religious self-expression by its employees merely based on entirely speculative fears.

In any case, the federal district court quite rightly held the policy unconstitutional. Draper v. Logan County Public Library, 2005 WL 3358686 (W.D. Ky. Aug. 29). Too bad it had to take a lawsuit to get the library to treat its employees properly.

UPDATE: Though WESTLAW showed this as an August 2005 case, someone familiar with this litigation has told me that it's actually an August 2003 case. The substantive analysis remains the same, of course.

Kim Scarborough (mail) (www):
What on earth? They think the librarians won't be impartial if they're wearing crucifixes? What do they think they're going to do--tell people looking for reference materials on Islam to get lost? And even if they have librarians with really bizarre judgement like that, won't they be just as "partial" without the jewelry? What, do cross necklaces automatically turn librarians into lunatics? What planet do these administrators live on?
12.14.2005 1:59pm
Alex R:
I have zero wish to defend the library in question, and I too agree with the federal district court, but it wouldn't surprise me to learn that the cross in question was not a nice, little, golden "I'm a Christian" cross, but something a bit more countercultural...

Or to return to Eugene's comparison between T-shirts and jewelry, the relative disruption potentially caused by these two items would depend quite a bit on the size and style of the jewelry, wouldn't it? Would you really have a problem with an employer who asked an employee who serves the public not to wear a necklace with a 4-inch iron swastika hanging from it?
12.14.2005 2:08pm
Gordon (mail):
It's this kind of nonsense that gives fodder to the current Christian demagoguery spouted by O'Reilly and his ilk.
12.14.2005 2:10pm
Bob Bobstein (mail):
It's this kind of nonsense that gives fodder to the current Christian demagoguery spouted by O'Reilly and his ilk.

Agreed, but isn't it unchristian demagoguery? Where in the Gospels does Jesus demand targeted marketing from the moneylenders of Israel? O'Reilly reminds me of South Park's Mr. Garrison on this one (lyrics to first song, rather offensive).
12.14.2005 2:21pm
David Matthews (mail):
"[T]he policy is necessary to protect librarian impartiality"

The self-importance of some public librarians boggles belief. In my entire life, I don't recall even once having cause to be concerned about the impartiality, or partiality, of a librarian, nor can I conjure up a hypothetical scenario where "librarian impartiality" would be a major issue. ("All you atheists, SHHHHHHHH! Fundamentalists, go ahead and talk as loud as you like." or maybe "Well, since you're a Muslim, that book is due TOMORROW. If you were a Catholic, you could have kept it for a year.") And I use public libraries far more than most people. These are, perhaps, the "militant librarians" joked about in the FBI e-mail.
12.14.2005 2:22pm
David M. Nieporent (www):
Too bad it had to take a lawsuit to get the library to treat its employees properly.
Assuming that the bureaucrat who came up with this policy is not actually insane, what on earth could he or she have been thinking? How could anybody believe that the stated policy was constitutional? Are these bureaucrats -- and plenty of public school officials who have promotedin equally facially unconstitutional policies

(A) Really so petty that they'll throw their weight around hoping nobody will challenge them?
(b) Really so ignorant that they think these policies are legitimate?
12.14.2005 2:32pm
Q.:
Pacer shows this case from 2003. (1:02-cv-00013-TBR) The judge's signed order states, pretty clearly, August 29, 2003!

Yet, Westlaw has a 2005 date. Wierd.
12.14.2005 2:41pm
Q.:
Oh, and the court granted QI to the individual defendants, so, at least, the court did not think the issue so clear that one must be "ignorant" to think the policy constitutional.
12.14.2005 2:43pm
R. Gould-Saltman (mail):
First, I'm puzzled by Doc's current mention as this being among "plenty" of cases; the underlying fracas seems to have taken place in 2002, with the District Court order issued in 2003. Robertson's ACLJ has been taking credit for it for two years now.

Certainly, the local library's enforcement of their policy seems aberant, even to us here in good old secular-humanist-pagan-Wiccan-lesbian-Communist-tolerating California; I see similar personal jewlry or symbols on public employess all the time. When one of my son's public school teachers provided a classroom full of students, in a classroom context, with a written exhortation stating that teacher hoped that students would adopt a particular religious belief (no, it had no connection with the class subject), while a few parents objected (mostly to the use of class time) the teacher was back the following year.


I'm frankly curious as to the position taken on the issue by the Kentucky chapter of the ACLU...

AND I'm kind of curious as to why a supposedly mostly Christian, mostly conservative, local government entity took the position it did, even to the point of litigation, beyond a general unwillingness to brook "insubordination" (the actual basis for firing) and a general willingness to stomp on librarians, who are, after school teachers, IMHO pretty much among the most undercompensated, underappreciated, over-scapegoated-by-demagogues folks in the land.

r gould-saltman
12.14.2005 2:49pm
Wintermute (www):
I don't think the case is so one-sided as all that, but the practice in question is not insomnia-producing.

Jesus himself did counsel against public displays of piety.

5"And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by men. I tell you the truth, they have received their reward in full. 6But when you pray, go into your room, close the door and pray to your Father, who is unseen.

Get the context at Biblegateway.
12.14.2005 3:05pm
Nick (www):
The real foolishness here is that the policy really works against the real goal. Forcing an employee to not wear Christian jewlery doesn't stop them from being impartial (if they even were to begin with). However, it does stop the patron from knowing that an impartiality might exist, and therefore take any information given with a grain of salt.

Allowing a Christian to self identify in that way only serves to improve a patron's ability to take information given in a proper context, not prevent it.

Of course, I think the whole idea is a farse to begin with on its face, but I just thought I'd add that little extra something.
12.14.2005 3:39pm
CJColucci (mail):
Given what so many commenters on the atheist discrimination posts seem to believe is the state of the law and the world, I'm not surprised that some moron somewhere, possibly without even consulting the hack lawyers who usually advise local school boards and the like, would believe such an action was required.
12.14.2005 4:14pm
Mr Diablo:
You'd think that a librarian would be able to wear a cross, star, theton symbol (for those scientologist librarians) or a Jesus fish with legs, and then be able to dispense honest advice on how to use the Dewey (not Jewey) decimal system. And you'd hope that the courts would not need to get involved here at all.

BUT, you'd probably also hope that others would be able to separate their jobs from their beliefs. You know, like a pharmacist....
12.14.2005 4:32pm
Michelle Dulak Thomson (mail):
Wintermute, I really don't think wearing a cross on a chain constitutes a "public display of piety" in the sense Jesus meant. People wear other badges of allegiance — school ties and college rings, American flag pins, and the like — without being accused in this way. There seem several degrees of difference between wearing a necklace and praying ostentatiously in the street.

Actually, there's a thought: Does this policy prohibit American flag pins? Seems that it might. At least, the original clothing restriction banned "depicting religious, political, or potentially offensive decoration," and surely an American flag pin is "political," and might even be "potentially offensive" to non-American library patrons.
12.14.2005 4:34pm
Buck Turgidson (mail):
First, I want to take issue with Eugene's claim that Mogen David jewelry would have fallen under the same policy, since its common usage is to mark ethnic identity and not religion. In fact, some rabbis would counsel against wearing it as a religious symbol--or, for that matter, wearing anything as a religious symbol. Other religious accessories in Judaism are prescribed for specific purposes (e.g., tsitsit), but not as a generic sign of one's faith, which is what a cross symbolizes. It is true that some people wear crosses symply as jewelry.

Now, here's the problem with the case. Although the specific issue that arose concerned someone wearing a cross, there are plenty of other possibilities that might have brought the policy in to begin with. I can see some Evangelical nut complaining that a librarian was wearing a crystal, for example--recall the recent FoxTV reality show that swapped families (the episode has become known on the Left as "Christian Mommy"). Or some other bigot whining about muslim garb. This reminds me of past problems in Texas when fundies demanded local regulations banning gambling and were quite shocked when the first victim of their new regulation was their weekly church bingo.

The fact that none of the comments so far has brought up this problem suggests that you, people, don't look in the mirror enough.

I don't recall an Evangelical outcry when France banned the wearing of Muslim garb in schools. Why not? It's the same policy! What a bunch of sheep!
12.14.2005 4:54pm
Ex-Fed (mail) (www):
Things like this make me wonder — how many restrictions on free expression in schools, libraries, etc. arise from rank ignorance about the requirements of Establishment Clause law, as opposed to hostility towards religion?

And to what extent is all the carping about the war on Christianity by the evil secular courts and the ACLU a contributor to a vicious cycle? O'Reilly and Rush howl about how the ACLU is going to court and keeping religion out of the schools (a false, or at the very most charitable, misleadingly and selectively phrased premise), petty officials hear this and do what they think is necessary to keep the evil ACLU away based on an understanding of Establishment Clause law premised on talk radio's description of it, O'Reilly and ilk pick up the resulting story and demagogue it even more?
12.14.2005 5:00pm
Clayton E. Cramer (mail) (www):

Assuming that the bureaucrat who came up with this policy is not actually insane, what on earth could he or she have been thinking? How could anybody believe that the stated policy was constitutional?
Some bureaucrat somewhere believed that if he didn't impose such a rule, the ACLU might file suit for establishment of religion? They wouldn't, of course, but the "chilling effect" works, nonetheless. To the extent that you provoke self-censorship out of fear of being sued, you don't need to file suits.



AND I'm kind of curious as to why a supposedly mostly Christian, mostly conservative, local government entity took the position it did, even to the point of litigation, beyond a general unwillingness to brook "insubordination" (the actual basis for firing) and a general willingness to stomp on librarians, who are, after school teachers, IMHO pretty much among the most undercompensated, underappreciated, over-scapegoated-by-demagogues folks in the land.
Librarians as a profession make lawyers look conservative. Note the ALA's continuing unwillingness to criticize Cuba for sending people running private libraries to prison, while complaining about sec. 215 of the PATRIOT Act. In many parts of America, these sort of petty and clearly unlawful rules are a way for liberals to express their contempt and hatred for the majority religion by abusing their governmental power.
12.14.2005 5:50pm
Clayton E. Cramer (mail) (www):

I don't recall an Evangelical outcry when France banned the wearing of Muslim garb in schools.
I do. Of course, where would you see an evangelical outcry about this? There aren't any television networks or major newspapers that present our perspective.
12.14.2005 5:52pm
Joe Jackson:
I don't recall an Evangelical outcry when France banned the wearing of Muslim garb in schools.

I'm going to second Clayton Cramer on this. I know plenty of conservatives (mostly religious Christians) who were bothered by France's policy. Whatever lack of "outcry" there may have been is likely because (1) most of us have resigned ourselves to the fact that France is a smorgasbord of bad public policy, and (2) the complaints of American conservatives are of little use to the left-wing leaders of France. The statement quoted above is nothing more than an uninformed and inaccurate cheap shot.
12.14.2005 6:08pm
Joe Jackson:
I don't recall an Evangelical outcry when France banned the wearing of Muslim garb in schools.

I'm going to second Clayton Cramer on this. I know plenty of conservatives (mostly religious Christians) who were bothered by France's policy. Whatever lack of "outcry" there may have been is likely because (1) most of us have resigned ourselves to the fact that France is a smorgasbord of bad public policy, and (2) the complaints of American conservatives are of little use to the left-wing leaders of France. The statement quoted above is nothing more than an uninformed and inaccurate cheap shot.
12.14.2005 6:08pm
CJColucci (mail):
Interesting juxtaposition of Ex-Fed and Clayton Cramer back to back. Both seek to explain (one more tentatively than the other) why a God-fearing bunch of red-staters imposed an anti-religious policy that any half-competent lawyer could have told them was not only not required to defend against potential lawsuits (which all agree no one would bring), but positively illegal. Ex-Fed's explanation posits bone-ignorant people believing what ill-informed scoundrels tell them. CC's posits a devilishly intelligent strategy in which lawsuits successfully prohibiting A scare people into themselves prohibiting B and C, which are nothing like A.
As between one explanation relying on the existence of massive stupidity and another relying on the exercise of conspiratorial brilliance, I vote, on the odds, for the stupidity-oriented explanation. But maybe that's just me.
12.14.2005 6:55pm
Clayton E. Cramer (mail) (www):

Things like this make me wonder — how many restrictions on free expression in schools, libraries, etc. arise from rank ignorance about the requirements of Establishment Clause law, as opposed to hostility towards religion?
It only takes one example, like Adams County, Ohio, where the ACLU demanded $80,000 from the school district for legal fees after the ACLU won its claim in court, demanding that certain objectionable materials be removed from the schools. (I suppose if the district had decided to reject a free subscription to Hustler, the ACLU would have been suing them for removing it.)

Bureaucrats are notoriously paranoid of suit, and not just from the ACLU. When I lived in California, a friend worked as a security guard for the local drug store. The store also developed film. One set of rolls seemed to consist entirely of the rear ends of little girls leaning over on a school yard. The film developer asked my friend John his opinion--and John didn't see that they were unlawful--just creepy. John made a point of seeing who came to pick up the pictures, however.

A few days later, John goes over to the elementary school where his daughter and mine attended. He sees Mr. Creepy on the edge of the playground--taking pictures of the little girls' rear ends. Remember that in California, there are signs warning visitors to go to the office before entering the grounds--otherwise, you are trespassing. John is a big guy--about 6'5", and built like a football player. He grabs Mr. Creepy by the arm, and says, "We're going to the principal's office."

John tells the principal what Mr. Creepy has been doing, and about the rolls of film that Mr. Creepy has been dropping off for developing. The principal's first concern isn't about Mr. Creepy and his interest in prepubescent rear ends--it is, "John, you didn't force this guy to come to the office, did you?" John is not an employee of the school district. He isn't operating under any orders from the principal. The principal is more concerned that Mr. Creepy is going to file a lawsuit against the school for what John did than why Mr. Creepy is taking these pictures.

Mr. Creepy now starts to make explanations. He is working for an architectural firm. That's why he is taking pictures at the school. "What architectural firm?" He doesn't remember their name. Or their phone number. He declines to see if he can find them in the phone book. There's no architectural work planned at this elementary school. And still, the principal is more concerned about smoothing Mr. Creepy's ruffled feathers--even though, to hear John tell it, Mr. Creepy is acting more like he wants to get out of and there disappear.
12.14.2005 7:05pm
B. B.:
"the episode has become known on the Left as "Christian Mommy"

I don't know what you're reading, but the boards I read refer to it as "God Warrior" (as she referred to herself in the episode) and is ridiculed by everyone, not just the left. I mean seriously, it's such a caricature of a beyond-nutjob Christian, among other things, that it's funny to almost everyone that I know, left or right. Assigning it to "the Left" makes me think you watch too much of one of Fox's other channels, because politics doesn't have anything to do with why that was funny. Even Christians I know (myself included) thought that was completely over the top and funny. We know those people are out there just like there are some real moonbats on the left, and seeing one meltdown and make a fool of herself on national TV while attention-whoring for a buck is always amusing.

And I agree with those who think the Kentucky thing was born of stupidity. This is Kentucky after all, and while there are of course some smart individuals there, by and large given their education system I think it unlikely that some library bureaucrats there really thought that far ahead. This isn't exactly Rove we're talking about.
12.14.2005 7:10pm
Clayton E. Cramer (mail) (www):

Ex-Fed's explanation posits bone-ignorant people believing what ill-informed scoundrels tell them. CC's posits a devilishly intelligent strategy in which lawsuits successfully prohibiting A scare people into themselves prohibiting B and C, which are nothing like A.
These aren't necessarily incompatible. The ACLU's lawsuits that get A prohibited are just similar enough to B and C to scare gutless bureaucrats. They aren't necessarily bone-ignorant--just risk-averse lawyers.
12.14.2005 7:11pm
Honest Question:
The following revelation is brought to you by the People For Individual Responsibility:

Lawyers and bureaucrats cause America's social ills.
12.14.2005 7:40pm
Amy (mail):
"I don't recall even once having cause to be concerned about the impartiality, or partiality, of a librarian, nor can I conjure up a hypothetical scenario where 'librarian impartiality' would be a major issue."

I'm a card-carrying member of the California State Bar and an academic law librarian. First, I agree with the court's decision -- the Kentucky library's policy was clearly unconstitutional. But I also want to make it clear to the previous poster that there are situations where librarian impartiality is important. Librarians do quite a bit more than check out books or explain classification systems to patrons. We also decide which resources are purchased for the library and answer complex research questions for our patrons. I think there is an obvious need for impartiality when librarians perform both of these professional duties. For example, if an adult patron asks for help in locating materials on sexually transmitted diseases, our professional obligation is to assist the patron without intruding on the patron's privacy or making judgments about the patron's information need. Similarly, librarians have an obligation to strive to include materials in our collections that reflect a wide range of viewpoints without allowing our own personal beliefs to intrude on our selection choices. I know that there is a tendency to view librarians as glorified clerks, but there is a lot more responsibility involved in the job than most people realize.
12.14.2005 7:57pm
Michelle Dulak Thomson (mail):
Amy,

Librarians do quite a bit more than check out books or explain classification systems to patrons. We also decide which resources are purchased for the library and answer complex research questions for our patrons. I think there is an obvious need for impartiality when librarians perform both of these professional duties.

I don't believe it's possible to purchase new materials "impartially." Unless you have access to a database of what other libraries have bought in the last year, and just do what they do, to the extent your budget allows. "Impartial." Also uninteresting.

If your budget (and shelf space) isn't literally unlimited, your acquisitions are constrained. You buy some stuff, not other stuff. Someone has to fit the order to the budget. And the "reflect[ing] a wide range of viewpoints without allowing our own personal views to intrude on our selection choices" . . . but your views have to "intrude," at least in the sense that someone has to decide what gets how much shelf space, or how much of the allocation.
12.14.2005 8:19pm
Amy (mail):
Michelle,

You've made some excellent points. Financial, physical, and administrative limitations all play a part in collection development decisions. The larger point that I'm trying to make is that, even with these constraints, librarians try to represent as many viewpoints as possible and as fairly as possible. If we act in accordance with our professional ethics, we don't reject materials simply because they clash with our own personal or spiritual beliefs or build collections that reflect our own world view.

Lester Asheim wrote an eloquent essay about the selection process entitled "Not Censorship But Selection." Asheim states that librarians begin the selection process "with a presumption in favor of liberty of thought." Budget woes and cramped spaces do keep most of us from building the "dream collection," but we do our best to give our patrons a spectrum of opinion despite such limitations.
12.14.2005 9:27pm
Smithy (mail):
Reason #745 why we need a Christmas protection act sooner rather than later. This story is simply disgraceful. I can think of no other way to do it.
12.14.2005 11:23pm
Richard Aubrey (mail):
The hijab issue in France may have been taking a leaf from Ataturk. He recognized that giving women "choice" was no choice at all, considering what would happen to them when they got back to the 'hood. So he forbade traditional head dress for women. That way, they weren't making the decision to go uncovered and could not be punished for it.

We once had a librarian who subscribed our library to The Nation but not to National Review.

I once asked a librarian in the mid Nineties why there were seven or eight books on his shelves explaining how the USSR was going to bury us. He said ....mumble stumble, history, can't censormumble. That was inexplicable, even after he explicated.

And sometimes bureaucrats just like jerking others around from a position of impunity. Power corrupts, remember.
12.15.2005 12:42am
Cornellian (mail):
It only takes one example, like Adams County, Ohio, where the ACLU demanded $80,000 from the school district for legal fees after the ACLU won its claim in court, demanding that certain objectionable materials be removed from the schools. (I suppose if the district had decided to reject a free subscription to Hustler, the ACLU would have been suing them for removing it.)

I think it's worth mentioning that the conveniently unidentified "certain objectionable materials" were in fact 10 Commandments monuments according to the linked story. Hardly in the same realm as Hustler magazine. And are you opposing awarding of attorney's fees for any successful constitutional suit, or just ones where you dislike the successful party's position?
12.15.2005 1:25am
Cornellian (mail):
Reason #745 why we need a Christmas protection act sooner rather than later. This story is simply disgraceful. I can think of no other way to do it.

Yeah, because Kentucky is full of people who want to get rid of Christmas.
12.15.2005 1:31am
Chris B (mail):
I remember back in the 70s getting into a debate about Yugoslavia, which was then often trumpeted as a kinder, gentler Communism. Someone made the point that, although the Yugoslavians didn't suffer Stalinist levels of oppression, it was certainly no free country: a popular newsreader, for example, had been fired for wearing a cross around her neck while on the air.

That statement made perfect sense at the time.
12.15.2005 9:07am
David Matthews (mail):
"Similarly, librarians have an obligation to strive to include materials in our collections that reflect a wide range of viewpoints without allowing our own personal beliefs to intrude on our selection choices."

Point well taken. I stand corrected, and apologize.
12.15.2005 9:45am
Smithy (mail):
The ACLU's lawsuits that get A prohibited are just similar enough to B and C to scare gutless bureaucrats. They aren't necessarily bone-ignorant--just risk-averse lawyers.

That's the ACLU's M.O. -- sue enough people and you'll scare the others into submission. Is there anyway the government could have the ACLU shut down? Couldn't we use the Partriot Act for this somehow? I'm not a lawyer, so somebody fill in me. The lefties get mad about this idea, but it seems to me it might possibly work.
12.15.2005 9:49am
Clayton E. Cramer (mail) (www):


It only takes one example, like Adams County, Ohio, where the ACLU demanded $80,000 from the school district for legal fees after the ACLU won its claim in court, demanding that certain objectionable materials be removed from the schools. (I suppose if the district had decided to reject a free subscription to Hustler, the ACLU would have been suing them for removing it.)



I think it's worth mentioning that the conveniently unidentified "certain objectionable materials" were in fact 10 Commandments monuments according to the linked story. Hardly in the same realm as Hustler magazine.
Yeah, you are right. Hustler isn't anywhere near as objectionable to the ACLU as the Ten Commandments. I didn't identify what the "objectionable material" was to make a point: the ACLU's enthusiasm for free speech is trumped by its enthusiasm for an ahistoric understanding of the establishment clause.

And are you opposing awarding of attorney's fees for any successful constitutional suit, or just ones where you dislike the successful party's position?
I am of mixed mind about the attorney's fees issue. There's no question that it creates an incentive for attorneys to pursue questions that otherwise might not be litigated. On the other hand, there are situations where there is a legitimate difference of opinion as to the constitutionality of some action--and awarding of attorney's fees, especially when the disparity is large (rich ACLU vs. a poor school district) that can create the chilling effect that I previously mentioned.

Let's turn the tables a little, shall we? Imagine that the loser in any suit had to pay the attorney's fees of the winner. How many little guys would be willing to see big corporations? Now, there are cases where the defendant is clearly in the wrong, and there would be no problem finding an attorney willing to sue on a contingency basis. But what about the cases where there is a legitimate question--where an impartial person could see that both sides had legitimate positions from which they were arguing.

On one side, you have a person who claims that product X is defective, and caused his injuries. On the other side, you have the maker of product X claiming that the product is not defective. The plaintiff files suit; a jury rules that product X is not defective. The plaintiff now gets stuck with paying the corporation's legal fees--say, $250,000. How many lawsuits like this are going to be filed?
12.15.2005 10:45am
paa:
Smithy,

Why does this make you think we need a christmas protection act? The idiotic regulation was struck down by our courts, making the act unnecessary. Further, being a statute, the christmas protection act couldn't authorize unconstitutional behavior, so would not permit the librarians to do anything they are currently forbidden from doing.
12.15.2005 12:12pm
Smithy (mail):
The idiotic regulation was struck down by our courts, making the act unnecessary

After thousands of dollars in legal fees were needlessly spent!
12.15.2005 12:27pm
Clayton E. Cramer (mail) (www):
Cornellian writes:


Yeah, because Kentucky is full of people who want to get rid of Christmas.
It only takes a few liberals in positions of power (or gutless bureaucrats who are afraid of liberals) who are willing to take actions like that public library did, to accomplish the liberal goal of suppressing religious expression.

paa writes:


The idiotic regulation was struck down by our courts, making the act unnecessary.
What did it cost in time and money to get the courts to strike down a clearly unconstitutional action? There are advantages to have a clear statement of the law, to put a presumption in place.
12.15.2005 12:34pm
wildmon (mail):
Why does this make you think we need a christmas protection act? The idiotic regulation was struck down by our courts, making the act unnecessary. Further, being a statute, the christmas protection act couldn't authorize unconstitutional behavior, so would not permit the librarians to do anything they are currently forbidden from doing.


I'm not sure what a Christmas protection act would do, but if it would reinforce the rights we already have, I see no problem. A clear affirmation of the right to celebrate Christmas would do alot to curb these attacks on religion. The ACLU would be forced to attack the law at a Federal level, rather than attacking small town governments that don't have the funds to fight such a monolithic organization.

Organizations like the ACLU are wielding their power to create a chilling effect. A law protecting our cherished institutions would go a long way in fighting that.
12.15.2005 1:11pm
Cornellian (mail):
I'm not sure what a Christmas protection act would do, but if it would reinforce the rights we already have, I see no problem. A clear affirmation of the right to celebrate Christmas would do alot to curb these attacks on religion.

Which provision of the Constitution gives the Federal Government the authority to legislate a "right" (presumably enforceable against other private parties and state governments) to "celebrate Christmas" whatever that might mean. I thought Christmas meant putting up a tree and handing out presents, but apparently now it has something to do with what librarians wear to work.
12.15.2005 4:53pm
Smithy (mail):
Cornellian: many Christians, such as my wife, wear religious-themed jewelry specifically around Christmas time. She wears a cross earrings and a necklace with a fish on it this time of year in order to celebrate the birth of Jesus Christ. For some of us, Christmas means more than an orgy of conspicuous consumption.
12.15.2005 5:35pm
Clayton E. Cramer (mail) (www):
Cornellian writes:

Which provision of the Constitution gives the Federal Government the authority to legislate a "right" (presumably enforceable against other private parties and state governments) to "celebrate Christmas" whatever that might mean.
You might want to go to law school (or even take an undergraduate history class such as this one that I taught a couple years back), where you learn about the 14th Amendment, the Enforcement Act of 1870, and 42 USC 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
The courts have recognized that freedom of religion is protected by the First Amendment against the federal government, and by incorporation through the Fourteenth Amendment, against the states.
12.15.2005 6:05pm
R. Gould-Saltman (mail):
Some of the comments in response to this post, as with the pro-Alito TV ad referenced by Orin Kerr, give me pause to weigh whether they aren't just the work of (not very subtle) satirists.

Since Doc Volokh admonishes not to say anything which might get one regarded as "cranky", (a label which some have already pasted on me) I won't elaborate further...

r gould-saltman
12.15.2005 8:08pm