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New Jersey ACLU Defending Student's Right to Sing Religious Song at Talent Show:

The brief is here. I agree entirely with the bottom line, and almost entirely with the analysis.

Thanks to Craig Oren for the pointer; a news account asserts that the brief was just filed.

ACLUisevil (mail):
Stop the ACLU! They're un-American!
6.6.2006 4:40am
Allen Asch (mail) (www):
The initial news report on the ACLU trying to enter the case last September is here: ACLU of New Jersey Joins Lawsuit Supporting Second-Grader's Right to Sing "Awesome God" at Talent Show


It's one of more than two dozens examples on my ever growing webpage: The ACLU Fights For Christians

That page, by the way, got a link at the end of an interesting article in Christianity Today by Prof. Stephen Carter here: The ACLU Is Not Evil
6.6.2006 5:01am
Ship Erect (mail) (www):
Is Jay Sekulow's head exploding over this?
6.6.2006 7:00am
Public_Defender (mail):
If the ACLU is evil, does this mean singing Christian songs is evil?
6.6.2006 8:25am
Richard Aubrey (mail):
As people have said before, the national organization doesn't have much control over local chapters and the cases they choose to take.

Have I quoted some folks right?
6.6.2006 8:57am
Richard Aubrey (mail):
Oops. Just read the news report. The ACLU is saying "no reasonable person" could consider this meant the school was endorsing religion.

Seems to me that in other situations, where the ACLU is on the other side, the "reasonable person" standard would be considered extremely restrictive. Then, the standard is, "any moron looking to make trouble and willing to pretend to be offended and really stupid".
6.6.2006 9:01am
Public_Defender (mail):
Stephen Carter's Christianity Today article (mentioned in the second comment to this post) ends with a great quote:


The next time a fellow Christian disparages the ACLU , try answering with something like this: "Sure, they're on the wrong side sometimes, but I thank God for the times when they're right."


Carter is one of the most interesting writers on church/state issues, partly because he defies simplistic liberal, conservative, and libertarian labels.
6.6.2006 9:27am
Freder Frederson (mail):
I remember a few years back when both Jay Sekulow's organization and the ACLU came to the defense of students when a school district tried to ban the wearing of religiously symbolic jewelry at school (e.g., crosses and stars of david). You really have to make a boneheaded move when both sides are against you.
6.6.2006 9:46am
Marcus1 (mail) (www):
What a lame case. I bet Jay Sekulow's brother is somehow secretly on the schoolboard. Good heads up by the ACLU at least...
6.6.2006 10:18am
Ken Arromdee (mail):
One interesting question is how much the school's motivations for censoring the student had to do with the school trying to follow the precedents set by other ACLU cases.
6.6.2006 10:23am
Houston Lawyer:
Next thing you know, they'll be defending prayer in schools.
6.6.2006 10:27am
Ken Arromdee (mail):
It's one of more than two dozens examples on my ever growing webpage: The ACLU Fights For Christians

Your page includes this example: "ACLU Argument In Support of the Display of a Christian Cross in a Public Forum". That one refers to a KKK cross. While the government did try to justify itself using the Establishment Clause, calling this 'the ACLU fights for Christians' is rather misleading.

Also, several of these involve Christians versus other Christians. I don't think that quoting these cases really demonstrates that the ACLU "fights for Christians" since they could as easily be characterized as "the ACLU fights against other Christians".
6.6.2006 10:35am
james (mail):
If the ACLU is taken as a whole do the positions they take tend to side with Chrisitians or even main stream religions?
6.6.2006 10:47am
Medis:
I think the First Amendment issues should win the case for the plaintiff, but at some point the Supreme Court needs to revisit Locke v. Davey (one of my least favorite recent cases) and explain exactly how much farther a state can go in the name of anti-establishment interests.
6.6.2006 10:49am
zzyz:
If the ACLU is taken as a whole do the positions they take tend to side with Chrisitians or even main stream religions?

It depends. Do you mean the Christians who believe everyone else should be Christian, and the government should enforce that belief, or do you mean Christians who believe in civil liberties?
6.6.2006 10:50am
Freder Frederson (mail):
The ACLU takes cases that defend the individual right to practice religion--not the particular religion itself. So they often take cases for non-mainstream religions and non-Christians. What rightwing Christians (and I think most mainstream religions rarely have a problem with the ACLU) have problems with, is that the ACLU fights incessantly to prevent the government from promoting religion.
6.6.2006 11:01am
Medis:
james,

The problem with answering your question is that the ACLU's concern is about governments, and their interest is in protecting individuals and private groups. So, it is more than a bit artificial to sort and count their cases based on which side or sides involved Christians or other "mainstream" religions.
6.6.2006 11:07am
Connie (mail):
Is Clayton Cramer's head exploding over this?
6.6.2006 11:07am
N.I.:
Does it ever occur to theists that if indeed God exists he doesn't need the special rights and government establishment his followers keep demanding? What a weak, puny, impotent God they serve if he can only be kept in business with special government favors and tax breaks.
6.6.2006 11:09am
Medis:
Incidentally, I see that many of us gave basically the same answer to James.
6.6.2006 11:09am
Mike BUSL07 (mail) (www):

Does it ever occur to theists that if indeed God exists he doesn't need the special rights and government establishment his followers keep demanding?

God doesn't, if he exists. Then again, I don't know - I've never met him/her/it/whatever. But that's hardly an argument against ensuring equal rights for religious people in areas where atheists already enjoy substantial rights. A kid singing a song about God is not establishment of religion - it merely puts the religious person on the same plane as his atheist counterpart. but don't let that stop you from seething with condescension for the Jesus-lovers.
6.6.2006 11:31am
Thief (mail) (www):
OK, so the ACLU is actually defending a Christian.

Today is 6/6/06.

Repent, sinners, for the end times are at hand. ;)
6.6.2006 11:43am
Silicon Valley Jim:
I had been of the opinion that the ACLU was far more likely to support the establishment clause than the freedom of religion clause. I may have been wrong, or it may be that the ACLU, or at least some of its chapters, has changed direction somewhat. In either case, I am pleased to see this.
6.6.2006 11:53am
Colin (mail):
A kid singing a song about God is not establishment of religion - it merely puts the religious person on the same plane as his atheist counterpart. but don't let that stop you from seething with condescension for the Jesus-lovers.

Sorry, Mike, but I must have missed the post where the commenter made such an argument. He surely must have - I cannot imagine what else would justify your sneering tone.
6.6.2006 12:16pm
Mike BUSL07 (mail) (www):
Colin, here is N.I.'s post in its entirety:


Does it ever occur to theists that if indeed God exists he doesn't need the special rights and government establishment his followers keep demanding? What a weak, puny, impotent God they serve if he can only be kept in business with special government favors and tax breaks.


Aside from my belief that a sneering post justifies a sneering response, I think that N.I., to the extent he was implying anything at all, was implying that E.V.'s post describes an instance of religious establishment in schools. (Otherwise, N.I.'s comment is just a non-sequitur, and an angry one at that).

To be perfectly honest, though N.I.'s comment can be read to mean that the ACLU in this case is seeking to establish religion in school, I doubt that's what he meant. I very much suspect that it was a rehearsed diatribe, insertered at a quasi-opportune moment to express a general sentiment about the issue. Sneering and off-point as it was, I replied as I did. Pardon my temper - I'm not a better man for giving in to it.
6.6.2006 12:31pm
N.I.:
Mike, I'm not against equal rights for Christians, but if you follow news stories about such things most of the time what Christians are complaining about is not receiving special privilges. In this instance I agree with you that there's no real harm in allowing a child to sing a Christian song, but this isn't most establishment cases.

A far more usual example is the Sixth Circuit case in which a teacher assigned students to write an essay about something they didn't know about. The whole point was to get the kids to learn about something new. One of the Christian students wanted to write about Jesus and the teacher said no, because as a Christian the student already knew about Jesus. The teacher said it would be fine if a non-Christian wanted to write about Jesus, or a Christian wanted to write about some other religion, because in both cases the students would be learning about a subject they didn't already know. So the student turned in a paper about Jesus anyway, got an F, and sued.

The other issue, of course, is that with prayer in schools, creches at City Hall during the holiday (excuse me, Christmas) season, and the furor over "under God" in the Pledge of Allegiance is that the real agenda is that they want unbelievers to have to acknowledge their God at every turn. As an unbeliever I can't even spend a dollar on a cup of coffee without handing the clerk a bill that says "In God We Trust." Think about that for a minute -- in this country, commerce is impossible unless you're willing to acknowledge God.

So don't go complaining that Christians should have equal rights. I'm for equal rights, but truly equal rights is not something most Christians would agree to. They want special rights, with the rest of us paying the bills for it.
6.6.2006 12:44pm
Marcus1 (mail) (www):
Medis,

Locke v. Davey was my favorite recent case. It says that freedom of exercise is not an entitlement to government support. Why? Because, if it were, then we'd have to get rid of the whole anti-establishemnt principle. A city would establish a school, and Pat Robertson would say "Hey, that means you have to establish a church too!" Just like Davey said "Hey, you're funding science scholarships, that means you have to fund theology scholarships at a theological seminary!" To me, you have to recognize that the very principle of anti-establishment is "discriminatory" toward religion; after all, there's only one thing the government can't establish, and it's religion. The idea that the government has to treat religion like it treats everything else (e.g., majority decides) ignores the whole principle of anti-establishment.

Not that it's always easy. If you think he was just getting a college degree and only incidentally studying religion, then I can see why you'd disagree with the ruling. If the Court felt that way, though, I think they'd have ruled differently.

I'm not sure how that relates to here, though. Was the fear that the girl might win the talent show and then get paid for promoting her religion through some sort of cash prize? I'm pretty sure that wouldn't fall under Davey. Unless maybe the judging was by majority vote, and they thought the religious message would upset the competition?
6.6.2006 1:20pm
N.I.:
I posted the above before I read Mike's comment as follows:

To be perfectly honest, though N.I.'s comment can be read to mean that the ACLU in this case is seeking to establish religion in school, I doubt that's what he meant. I very much suspect that it was a rehearsed diatribe, insertered at a quasi-opportune moment to express a general sentiment about the issue.

Actually neither interpretation is correct. While I think allowing the student to sing the religious song is arguably establishment since it puts the audience in the position of having to respectfully sit quietly while she acknowledges her God, I also think that it's sufficiently de minimus that the equal rights for Christians ought to prevail -- on these facts. I stand by what I said earlier about most establishment cases involving Christians seeking special rights.

But since Mike seems determined to impugn my motives, while I will concede that my original post was ungracious and tactless and should have been more diplomatically written, my real motive in submitting it was that I see it as the broader issue underlying this particular case. We can talk about the immediate issue or the underlying issue and I chose to talk about what I perceive as the latter. I should have made that clear.
6.6.2006 1:25pm
Archon (mail):
If the government's tentacles didn't extend to just about every aspect of society there would be almost no establishment litigation.

When the founding fathers wrote the Bill of Rights, they never envisioned that state actors would be running schools, mass transit, and employ millions of people.

If the government would get out of the business of running schools almost all the contention about the establishment clause would disappear.
6.6.2006 1:29pm
Mike BUSL07 (mail) (www):
I find it highly ironic that you accuse Christians of being whiny, while you are apparently so distraught over having to use US Currency to buy your soy latte. Nevermind the fact that symbolic acknowledgements of religion have existed literally since the first day of this country's existence. If you dread to see those 4 little words so much - use your VISA. Starbucks accepts it, and doesn't even make you sign the receipt.
6.6.2006 1:39pm
Allen Asch (mail) (www):
Ken Arromdee wrote:

It's one of more than two dozens examples on my ever growing webpage: The ACLU Fights For Christians

Your page includes this example: "ACLU Argument In Support of the Display of a Christian Cross in a Public Forum". That one refers to a KKK cross. While the government did try to justify itself using the Establishment Clause, calling this 'the ACLU fights for Christians' is rather misleading.

Also, several of these involve Christians versus other Christians. I don't think that quoting these cases really demonstrates that the ACLU "fights for Christians" since they could as easily be characterized as "the ACLU fights against other Christians".
Given that more than three quarters of the US population self identifies as Christian, most cases are going to have Christians on both sides. I have little doubt, for example, that there are Christians among those opposing this student wanting to sing "Awesome God" at the talent show. I've seen the ACLU get called "anti-Christian" and "anti-religious" for a case in which the ACLU plaintiff was actually a Christian minister.

But, that case is not on my ACLU Christians webpage because it does not fit my criteria. The two criteria for cases on my ACLU Christians webpage are:
1) Free speech cases in which the speaker self-identifies his/her speech as Christian or
2) Free exercise cases in which the practitioner self-identifies his/her religion as Christian.

Cases that fit either of these criteria debunk the widely held belief that the ACLU is anti-religion or anti-Christian. In fact, the ACLU fights just as hard for individual religious speech and free exercise as the ACLU fights against government Establishment, sponsorship, endorsement, etc of religion.
6.6.2006 1:42pm
billb:
Archon:

Considering the existence of the The Massachusetts Law of 1647, our founding fathers must have been able to envision public schooling.
6.6.2006 1:50pm
eddie (mail):
I find the gratuitous bashing of the ACLU to reveal that several commentors really do not believe in rational discourse. The ACLU calls them like it sees them and then puts its money where its mouth is. Whether you agree with their reasoning in any particular case, you must agree that this is a group with the public's interest at heart.

To the person who would like to prove legal arguments using paper money, try getting the head of a camel through the eye of a needle.

There is simply too much stored up venom for the righteous here to ever act in the manner of a true Christian.

But at least the ACLU will be there when some other group gets hold of the reins of government and tries to limit the freedoms of our christian Americans.
6.6.2006 1:51pm
Archon (mail):
Billb -

Yes, possibly on a state level, but they would have never envisioned that the First Amendment would be "incorporated" through the Fourteenth Amendment making it applicable to the states.

Nor do I think they would have envisioned an amendment that specifically restricts Congress from doing five things to eventually be applied to local state run schools.
6.6.2006 1:56pm
N.I.:
I find it highly ironic that you accuse Christians of being whiny, while you are apparently so distraught over having to use US Currency to buy your soy latte. Nevermind the fact that symbolic acknowledgements of religion have existed literally since the first day of this country's existence. If you dread to see those 4 little words so much - use your VISA. Starbucks accepts it, and doesn't even make you sign the receipt.

Mike, I'm not distraught, I just don't see how Christians can complain that they are discriminated against when someone tries to stop them from inserting their theology into the lives of the rest of us.

Try this thought experiment: Imagine that you lived in a country in which 90% of the population believe in Linus' Cult of the Great Pumpkin, and insisted on making the 10% bow to the Great Pumpkin at every opportunity much as theists do in our society. There are active campaigns underway to force not just their children but yours to pray to the Great Pumpkin at the start of every school day, and to study the Book of the Great Pumpkin in school. Every dollar bill you spend has "Hail the Great Pumpkin" on it, every city council meeting and state legislature, every football game, and every school assembly invokes the Great Pumpkin. Politicians invoke the Great Pumpkin and imply that unbelievers aren't really loyal citizens.

It's easy to tell the unbelievers, "Just ignore it," but do you honestly not see how incredibly tiresome that would be very quickly? And that's before we even get to the subject of pumpkin evolution being taught in biology class.

Or, better yet, imagine yourself as a Christian living in Saudi Arabia.
6.6.2006 2:04pm
Humble Law Student:
Billb,

Tellingly, that Massachusetts bill begings with "It being one chief e project of ye old deluder, Satan, to keep men from the knowledge of ye Scriptures." Some may have envisioned it, but I'm sure you wouldn't have been happy with their vision!

Archon makes an important point. Modern Establishment Clause jurisprudence (pre Alito and Roberts) while nominally paying homage to the Lemon Test usually devolves to a coercion or endorsement test. Consequently, as goverment power extends religious freedom must necessarily receded. For every function that government takes from the private sector, it practically necessitates that religion is removed from that now public sphere. If the goverment were only minimally involved in American society as it was at our founding, then there would little room for goverment "establishment" of religion (outside of creating an official church which everyone agrees would be unconstitutional). But when goverment takes control over some aspect, it cannot support religion the same way a private actor could if that function were still retained in private hands. As such, the ever expansion of goverment leads to the continuing diminishment of religion.
6.6.2006 2:13pm
Medis:
Marcus1,

Unfortunately, that is not the holding of Davey (that government is not required to fund religion simply because the state decides to fund something secular), because that is not how the scholarship worked. The scholarship could be used for any major whatsoever, and the state would make no inquiry into the value of that major to the state. But it created an exception for devotional theology majors.

Those facts mean that the state was not, as you implied, choosing to fund something else in particular, and simply not choosing to fund religion. Rather, it was allowing the scholarship recipient to choose to study anything he wanted--unless he chose devotional theology. As Justice Scalia points out, that makes the program non-neutral with respect to religion (specifically, with respect to religions captured by the state's definition of devotional theology), in a way which, say, merely restricting a scholarhip to science majors would not be non-neutral with respect to religion (because devotional theology majors would be treated by such a scholarship program just like all other non-science majors).

Incidentally, I have complicated reasons for not liking Davey. Most notably, I think the reasoning of Davey requires one to assume a limited definition of religion and what it means to study to become a minister of a religion. Imagine, for example, a person intending to become a teacher of a nontheistic religion or philosophical equivalent (like secular humanism). Such a person could use the scholarship to study that religion or philosophy, because they would not be studying "devotional theology". Various Supreme Court precedents and other federal cases have established that such people are practicing religions within the meaning of the First Amendment, and that teachers of such religions should be considered equivalent to ministers for First Amendment purposes. And yet in Davey, the Supreme Court effectively allowed the state to discriminate between which sorts of ministerial studies (broadly defined) it would or would not fund.

So, I am sympathetic to the idea that a state may go farther than the federal constitution requires in the name of preventing establishment of religion. But I don't think that in doing so, the state should be able to adopt non-neutral exceptions for religious uses of funds it otherwise provides without such strings, and I also don't think that a state should be able to choose only a limited subset of religions, broadly defined, to be subject to such anti-establishment exceptions.
6.6.2006 2:13pm
Ken Arromdee:
Given that more than three quarters of the US population self identifies as Christian, most cases are going to have Christians on both sides.

When you create a page which claims that the ACLU fights for Christians, that implies more than just that there are people that are Christian and for whom the ACLU fights. If that's all it meant, you could just mention almost any random ACLU case.

Rather, it implies that the ACLU fights for Christians in contexts where the fight helps a person express Christianity or helps a public figure or organization known for its Christianity.

It is *not* true that most ACLU cases will (in this sense) have Christians on both sides, and a case with Christians on both sides really doesn't demonstrate the ACLU "fights for Christians".
6.6.2006 2:20pm
Medis:
Marcus1,

Oh, and I think Davey relates here because the school was asserting an anti-establishment interest in preventing the girl from singing the song as a matter of her own choosing. The ACLU points out in its brief that the Establishment Clause does not REQUIRE the school to impose such a restriction. But in Davey, the Court held that it was OK for the state to go farther than the Establishment Clause would REQUIRE, even to the point of creating a program which generally allowed people discretion over how they used state resources, but created an exception if an individual chose to use those state resources for a religious purpose contrary to the state's asserted anti-establishment interest.

As I was trying to note in my first post above (although I was not clear), I think in this case the reasoning in Davey is likely trumped by the Court's free speech cases involving things like public forums. But this case still raises the issue of how far the state can go under Davey once we have abandoned neutrality as a guiding principle, and that would be a highly-relevant question if the Free Speech Clause did not provide independent protection of the girl's activities.
6.6.2006 2:27pm
Truth Seeker:
Until the ACLU starts protecting Second Amendment rights, I'll always consider them partisan hacks.
6.6.2006 2:29pm
Mike BUSL07 (mail) (www):
N.I., you are lumping together groups of Christians that have no business being in the same, err, lump. The people who are trying to get mandatory prayer in school are wrong. the people who are seeking equal rights are not. That the flormer are wrong, does not reflect on the validity of the claims of the latter.

And please spare me the great Pumpkin mental exercise - I find it insulting.
6.6.2006 2:29pm
Medis:
Ken,

You say: "it implies that the ACLU fights for Christians in contexts where the fight helps a person express Christianity or helps a public figure or organization known for its Christianity. . . and a case with Christians on both sides really doesn't demonstrate the ACLU 'fights for Christians'."

I don't understand your logic here. How does the fact that another sect of Christians may be on the other side of the case negate the fact that the ACLU is helping the Christian person or organization on their side?

You seem to be requiring the ACLU not just to "fight for Christians", but also to "fight for Christians and against non-Christians". How exactly is that a fair reading of the original claim? Indeed, it seems to assume the sort of "cultural war" paradigm (that the world can be divided simply into pro-Christian and anti-Christian forces) which the website is trying to disprove.
6.6.2006 2:34pm
Allen Asch (mail) (www):
Ken Arromdee:

With all due respect (and you seem like a smart guy from your resume), your last comment responded to the first sentence of my previous comment while ignoring the rest of my comment almost in its entirety. In fact, in most ACLU cases, people who self-identify as Christians will be on both sides but, as I posted, that's not enough to get on my ACLU Christians webpage. As I posted, the two criteria for cases on my ACLU Christians webpage are:
1) Free speech cases in which the speaker self-identifies his/her speech as Christian and/or
2) Free exercise cases in which the practitioner self-identifies his/her religion as Christian.

Cases that fit either of these criteria debunk the widely held belief that the ACLU is anti-religion or anti-Christian. I list these cases to prove the point that the ACLU fights just as hard for individual religious speech and free exercise as the ACLU fights against government Establishment, sponsorship, endorsement, etc of religion.
6.6.2006 2:41pm
Public_Defender (mail):

Until the ACLU starts protecting Second Amendment rights, I'll always consider them partisan hacks.


Here are some equally thoughtful and fair statements:

Until the Institute for Justice starts defending a woman's right to choose to have an abortion, I'll always consider them partisan hacks.

Until the Institute for Justice starts defending the Fourth, Fifth, Sixth and Fourteenth Amendments in criminal cases, I'll always consider them partisan hacks.

Until the ACLJ starts defending the Fourth, Fifth, Sixth and Fourteenth Amendments in criminal cases, I'll always consider them partisan hacks.

Until the ACLJ starts defending the Establishment Clause of the First Amendment, I'll always consider them partisan hacks.

Etc., etc., etc.
6.6.2006 2:45pm
Mike BUSL07 (mail) (www):

You seem to be requiring the ACLU not just to "fight for Christians", but also to "fight for Christians and against non-Christians". How exactly is that a fair reading of the original claim?

Seems quite fair actually. Saying "fights for Christians" does imply that non-Christians are on the other side, because otherwise the conflict, so to speak, is just as susceptible, as has been pointed out, to being read as "fights against Christians." The description must be complete to be truthful, and "fights for Christians" omits a fact that's necessary to make the statement true.

What is unfair, is to imply that this argument is above the culture war paradigm, when any discussion of the ACLU and Christianity is a part of it practically by definition.
6.6.2006 2:46pm
agog:
<i>N.I., you are lumping together groups of Christians that have no business being in the same, err, lump. The people who are trying to get mandatory prayer in school are wrong. the people who are seeking equal rights are not. That the flormer are wrong, does not reflect on the validity of the claims of the latter.</i>


Which groups, and rights, do you consider not wrong?
6.6.2006 2:48pm
Marcus1 (mail) (www):
Medis,

We don't disagree much. I'm just pointing out that there may not be as clear a line as you would like between the situation where they have science scholarships but not religious scholarships, and the situation where they have [insert all majors here other than devotional theology] scholarships and not religious scholarships.

What if the state established a hundred separate programs for each major, with the only exception being devotional theology? Would you call it unconstitutional, because they clearly had a purpose to discriminate against religion? They'd respond, of course, that they had no such purpose, but merely a purpose to promote various arts and sciences, while perhaps lacking such a purpose to promote theology, in no small part because a purpose to promote theology smacks of establishing religion.

How do you reconcile that? If a city establishes a school, police station, library, ice skating rink, museum, and soccer team, does it then also have to establish a church? I think the establishment clause says "no." It says that you can establish anything and everything you want without also having to establish religion. And if it can do that, then I think the Washington scholarship program is fine, because functionally, that's all it did. This is my problem with the "neutrality doctrine," which is that I think it neutralizes the establishment clause.
6.6.2006 2:52pm
Medis:
Mike,

You say: "Saying 'fights for Christians' does imply that non-Christians are on the other side, because otherwise the conflict, so to speak, is just as susceptible, as has been pointed out, to being read as 'fights against Christians.'"

Again, I don't quite follow your logic. Suppose we accept that in some of these cases, it is descriptively accurate to say that the ACLU was both fighting for Christians (on their side of the case) and fighting against Christians (on the other side of the case). How does the fact that they were doing both imply that they were doing neither?

It seems to me that your hidden premise is that there is no such thing as a case in which Christians are fighting against each other, such that one can choose a side and be fighting for some Christians and against other Christians. But that is exactly what happens in many of these cases, and your hidden premise turns out to be false.

Finally, you say: "What is unfair, is to imply that this argument is above the culture war paradigm, when any discussion of the ACLU and Christianity is a part of it practically by definition."

Again, that I take it is exactly the point of this website: to demonstrate that any "definition" of the ACLU which implies that the ACLU never fights for Christians is wrong. And in so doing, it also helps to refute any "definition" of "Christianity" that would imply that Christians never fight against each other when it comes to these issues.
6.6.2006 3:01pm
N.I.:
Mike, how exactly is it insulting to point out that it is awfully tiresome to be confronted nonstop with other people's religious beliefs? Is it any less insulting to say, "Imagine yourself as a celebrity who can't step out the front door without the papparazzi sticking a camera in your face?" Same point; there is a limit on one's constitutional rights to irritate other people.

I will agree with you that some theist demands for special rights are more egregioius than others, but under the equal protection analysis you're demanding Christians lose badly. Atheists don't get to put slogans on the dollar bill or have the legislature open with a moment of silence in honor of free thought; why should Christians?
6.6.2006 3:14pm
Medis:
Marcus1,

First, I think it is important to note that your hypothetical is not in fact equivalent to what happened in the case. Again, the state left it up to the scholarship recipient to choose what he wanted to study. That is importantly different from a situation in which the state chooses a list of subjects it wants to fund, even if that is a long list.

That said, if Davey had come out the other way, and the state had then attempted to save the program by listing every single subject it could imagine besides devotional theology, I would call it a sham and still invalidate the program. Again, that indiscriminate listing of every other major besides devotional theology simply is not analogous to a situation in which the state chooses certain subjects to fund for some particular reasons, and if the state claimed that is what they were doing they would simply be lying.

Finally, these same principles applies to your broader hypo. This would not be like a case where the city chose certain functions it wanted to perform, like policing, education, and so on. Rather, this would be like a case in which the city supplied cash subsidies to building contractors, and told them that they could build whatever they wanted with the cash, except that they could not use the subsidy for buildings in which theist religions would worship.
6.6.2006 3:16pm
Mike BUSL07 (mail) (www):

It seems to me that your hidden premise is that there is no such thing as a case in which Christians are fighting against each other, such that one can choose a side and be fighting for some Christians and against other Christians

Medis, sure, such a case can exist, and often does. But the natural reading of the sentence suggests, due to the use of the noun "Christians," that they are fighting as Christians. Suppose Joe Christian sues Billy Christian for, say, breach of contract. Hobson&Hobson LLP, represent Joe - and later advertise - "We represent Christians." Sure enough - technically they did just that. But this description is inaccurate, because it implies, on a natural reading, not just that HH is willing to accept clients who are Christian, but that its agenda is to guarantee the rights of Christians.

It would be more accurate if the website said, "ACLU fights for free speech," or "ACLU fights for free speech without regard to who the speaker is or who is offended," (assume that it would be true), but it's NOT accurate to say "ACLU fights for Christians," because the subject of the sentence involves a group, and implies a criterion, that is not employed by the ACLU when selecting clients.
6.6.2006 3:18pm
Mike BUSL07 (mail) (www):
N.I., don't take this personally, but I've been through this precise argument too many times, and just no longer have the stomach for rehashing it. I'm sure you will find more willing adversaries here.

And what I found insulting to my intelligence was the form, not the substance.
6.6.2006 3:20pm
Allen Asch (mail) (www):
Truth Seeker wrote:

Until the ACLU starts protecting Second Amendment rights, I'll always consider them partisan hacks
A few of the problems with your comment:
1) No final court decision has ever found a violation of the Second Amendment
(with one minor, partial exception against federal precedent), so you're complaining about lack of protection of an Amendment that's never violated.
2) The ACLU has at least one reasonable interpretation of the ambiguous Second Amendment. See, e.g., the archived discussion at this link: ACLU President Nadine Strossen Comments on the Second Amendment
3) Your comment is off-topic
6.6.2006 3:21pm
Ken Arromdee (mail):
As I posted, the two criteria for cases on my ACLU Christians webpage are:
1) Free speech cases in which the speaker self-identifies his/her speech as Christian and/or
2) Free exercise cases in which the practitioner self-identifies his/her religion as Christian.

Cases that fit either of these criteria debunk the widely held belief that the ACLU is anti-religion or anti-Christian.


No, they don't, not if there are Christians on the other side who also fit these categories. If there are Christians on the other side, the case doesn't debunk the belief that the ACLU is anti-Christian because the ACLU is being anti-Christian and pro-Christian at the same time.
6.6.2006 3:30pm
Allen Asch (mail) (www):
Mike BUSL07 wrote:

Saying "fights for Christians" does imply that non-Christians are on the other side, because otherwise the conflict, so to speak, is just as susceptible, as has been pointed out, to being read as "fights against Christians." The description must be complete to be truthful, and "fights for Christians" omits a fact that's necessary to make the statement true.
I disagree. The title of my ACLU Fights for Christians website is not only literally true, but, in my opinion, conveys the substance of the cases. As I've explained, I've picked cases in which the ACLU is defending not just someone who happens to be Christian, but someone who needs defending because he/she is speaking as a Christian or practicing as a Christian. While it might give more detail to title my page "The ACLU Fights For Christians Speaking As Christians And/Or Practicing As Christians," brevity is not the same thing as dishonesty or, even, inaccuracy.
6.6.2006 3:35pm
Marcus1 (mail) (www):
Mike/N.I.,

>And what I found insulting to my intelligence was the form, not the substance.<

I've insulted people the same way, inadvertently. At some point, it's impossible to avoid. The problem is that the atheistic position is so basic, and yet so few are willing to acknowledge it for what it is, that one is forced to resort to rhetorical tactics which are invariably found insulting.

I guess I'm just not sure which part is insulting. Is it the notion that conventional religions really aren't any more rational than cults of magic pumpkins? Or is it that the similarity is so obvious that N.I. is insulting to point it out? Either way, the problem is that it essentially turns atheism itself into an inappropriate insult.
6.6.2006 3:52pm
MixChael222 (mail):
N.I.,

The problem with your Great Pumpkin hypothetical is that in the U.S., religious believers do not insist that non-believers "bow down" to their God, or even "acknowledge" the existence of God. That, and the other things in your description of life in Great Pumpkinland, represent imagined offenses on the part of non-believers. All the majority (believers) want is to be left alone and not have to pander to these endless irritating pretended offenses from non-believers. If you're so rational and thick-skinned, why not get on with life and stop whining about believers? If life amongst believers is so intolerable, why not move to Europe? Why spend time and effort trying to eliminate from public life all vestiges of religion? Is it really that offensive to you? Come on! I think the complaints are just a way of making some tiresome point, myself. If it really is that offensive,, imagine how offensive it is to faithful believers to be constantly derided by pop-culture and forced to accept sacrilege as "art" because of a warped interpretation of the very Amendment that is supposed to protect religion from government.
6.6.2006 4:18pm
Medis:
Mike,

I think Allen ably responded to your hypo by noting that these cases do not just happen to involve Christians, nor even just happen to involve Christians asserting First Amendment rights, but rather involve Christians asserting First Amendment rights as applied to their Christian expressions or practices. Again, if your only point is that the ACLU is not choosing to defend such rights specifically because Christianity is involved, then I think the whole point of the website is to call into question the overly simplistic division of legal issues and cases into "pro-Christian" or "anti-Christian".

Ken,

You say: "If there are Christians on the other side, the case doesn't debunk the belief that the ACLU is anti-Christian because the ACLU is being anti-Christian and pro-Christian at the same time."

Although Allen can speak for himself, it again seems to me part of his point is that the very idea of dividing the world into "pro-Christian" and "anti-Christian" categories is mistaken. In other words, he is not suggesting that the ACLU is being put into the wrong one of these two categories, but rather seeking to demonstrate that those categories are not well-conceived in the first place.

And frankly, saying something like "the ACLU is being anti-Christian and pro-Christian at the same time" is a pretty darn close to admitting an absurdity.
6.6.2006 4:21pm
MixChael222 (mail):
N.I.,

One other thing: your comparison of an atheist living in the U.S. to a Christian living in a middle eastern dictatorship is highly disengenuous. Surely you don't believe that a Christian in Saudi Arabia enjoys anywhere near the same rights and freedoms that an atheist in the U.S. does. Anyone with the slightest concept of the real world would consider such an argument indefensible.
6.6.2006 4:28pm
N.I.:
MixChael222, you missed the point of my Saudi Arabia hypo. Of course there are far more rights here than there, but that isn't the point. The point is that it's tiresome to listen to a non-stop barrage of theism day after day after day and any Christian who had to listen to a non-stop barrage of Islam day after day after day would find it tiresome too.

And your notion that all Christians want is to be left alone is laughable. If that were true, the girl in New Jersey wouldn't have asked to sing the religious song in the first place -- she would have sung it in church instead. Rather, she expects unbelievers in the audience to politely and quietly listen while she sings about how awesome God is.

Marcus1, thanks for your legitimate point about the magic pumpkins although I actually intended a different point (I probably didn't express myself clearly). Assume for the sake of argument that Christianity is true in every point and unbelievers are completely out to lunch. Even granting that, there are plenty of things that are true that I don't want to hear about day after day after day and be confronted with every time I set foot outside. If Christians have found something to be devoted to, I'm happy for them. I'm also happy for my vegan sister. I'm just not as devoted as they are and would like not to have my status as an outsider pointed out at every opportunity.
6.6.2006 4:50pm
washerdreyer (mail) (www):
Until the ACLU starts protecting Second Amendment rights, I'll always consider them partisan hacks.

Truth Seeker: Two other commenters have already done a good job of pointing out problems with this view, but I thought it might be worthwhile to link to a post that I wrote a while back on pretty much the exact claim that you make.
6.6.2006 4:53pm
Medis:
As an aside, I personally think that anyone insisting that the inclusion of theistic references in things like the Pledge, Motto, etc., represent particularly important substantive issues is clearly overstating their case. But similarly, to the extent that people insist it is vitally important that we keep these references in place, they are also overstating their case. And obviously, to the extent that one argues it is vitally important to preserve these references, it lends credence to the suggestion that something more than what has been called "ceremonial deism" is at stake.
6.6.2006 5:07pm
MixChael222 (mail):
N.I.,

she expects unbelievers in the audience to politely and quietly listen while she sings about how awesome God is

Gee, is that such an imposition? In the interest of equality, believers are expected to "sit politely and quietly" and listen to athiests express their beliefs (or lack thereof). That's what we do in "tolerant" civilized societies. Try being a believer in a public school or university and taking exception to the athiestic views that are taught as "fact." Now that can be irritating and uncomfortable, even threatening to your academic standing.

I'm just not as devoted as they are and would like not to have my status as an outsider pointed out at every opportunity.

One of the consequences of choosing to be "an outsider" is that sometimes you're going to feel uncomfortable. Boo hoo. If I moved to Saudi Arabia, I would expect to be confronted with Islam at every turn, and would be foolish to complain about it. Again, having your "status as an outsider pointed out at every opportunity" is an imagined offense. Nobody insists that you wear a visible "ATHIEST" label on your lapel. Further, your status as an athiest is accepted. Why not accept that those around you want the same freedom to express and live their beliefs as you have? Regardless of what the ACLU may tell you, there's no constitutional right to not be offended.
6.6.2006 5:08pm
Random Outcome:
MixChael222

Try being a believer in a public school or university and taking exception to the athiestic views that are taught as "fact."

Can you give some specifics of these atheistic views and where they are taught? Are there public schools that are affirmatively teaching students that there is no god, and that christianity and other monothesitic religions are a hoax? Or is the teaching of evolution now considered "atheistic"?
6.6.2006 5:15pm
Colin (mail):
"Regardless of what the ACLU may tell you, there's no constitutional right to not be offended."

I don't recall the ACLU ever telling me that. It seems to me---and please correct me if I'm wrong---that N.I. already stipulated that the ACLU is correct to defend the girl in question, and that she has a right to sing a religious song even if he doesn't want to hear it. Your posts are full of indignation, but you don't seem to be fully engaging the substance of what N.I. is saying.

"Try being a believer in a public school or university and taking exception to the athiestic views that are taught as "fact." Now that can be irritating and uncomfortable, even threatening to your academic standing."

What "atheistic views" are taught as facts?
6.6.2006 5:17pm
N.I.:
Ok, MixChael222, you unfortunately don't understand a basic, fundamental premise of the Bill of Rights: Under the First Amendment, there can be no such thing as a religious outsider because the government is forbidden to prefer one belief system over another. And that's really what's at issue here: You want the government to prefer yours. So we are back to my original point about Christians demanding special rights.
6.6.2006 5:24pm
Public_Defender (mail):
MixChael222 writes:


. . . If I moved to Saudi Arabia, I would expect to be confronted with Islam at every turn, and would be foolish to complain about it. . . .


So Saudi Arabia is a good example of the appropriate role of a dominant religion in society?
6.6.2006 5:29pm
MixChael222 (mail):
I had just returned to this site to apologize for my tone, and saw the follow up posts to my last post --

So, first, I apologize for my tone. Indignant, yes. Perhaps just a little tired of the way things are headed in this country with regard to the so-called "separation clause." In that regard, I can sympathize with N.I. at being tired of certain things (though it is different things of which we are tired).

Or is the teaching of evolution now considered "atheistic"?

No, I do not equate atheism with the teaching of evolution, but I do believe that evolution as taught in schools is fundamentally opposed to religious teachings and wholly incompatible with most theistic creationism, and the fact that it is taught as fact is wrong. In my public educational experience, religion was taught as a myth, and all science as fact. I take reasonable exception to that. Surely, it would be fair for all sides of such an important issue to be presented with equal weight, merit, and respect. And please don't try to tell me that doing so would somehow represent a state endorsement of religion. On those grounds, teaching only evolution is even more of a state endorsement of religion (the religion being scientism or secular humanism or atheism or whatever you wish to call it.)
6.6.2006 5:31pm
Bored Lawyer:

The point is that it's tiresome to listen to a non-stop barrage of theism day after day after day and any Christian who had to listen to a non-stop barrage of Islam day after day after day would find it tiresome too.


* * *


Ok, MixChael222, you unfortunately don't understand a basic, fundamental premise of the Bill of Rights: Under the First Amendment, there can be no such thing as a religious outsider because the government is forbidden to prefer one belief system over another. And that's really what's at issue here: You want the government to prefer yours. So we are back to my original point about Christians demanding special rights.


You are confusing the govt. with the citizenry. Nothing in the Bill of Rights guarantees that you will always feel comfortable or never feel like an outsider. You chose to hold a minority belief (atheism) and one consequence of that is that you will sometimes feel like an "outsider."

The vast majority of the "non-stop barrage of theism" which you find so "tiresome" is simply individual citizens exercising their own rights.

It is ONLY where there is Govt. action (or State action in the case of the States) that the Bill of Rights even comes into play. That is basic Constitutional law which every 1L learns.

So limiting oneself only to Govt. or State action, how exactly are you affected as an atheist?
6.6.2006 5:54pm
MixChael222 (mail):
Public,

So Saudi Arabia is a good example of the appropriate role of a dominant religion in society?

Of course not. That's just silly, and obviously not the point I was making.


N.I.,

Under the First Amendment, there can be no such thing as a religious outsider because the government is forbidden to prefer one belief system over another. And that's really what's at issue here: You want the government to prefer yours. So we are back to my original point about Christians demanding special rights.

First, I never said I wanted the government to prefer Christianity. I simply want the government to abide by the First Amendment and stop trying to tell me when, where and how I can exercise my religion (e.g. in public).

You're the one who said you are a religious outsider. Yes, the Bill of Rights forbids the government from preferring one religion over another, but that doesn't mean you are guaranteed the right to never find yourself in the minority and uncomfortable there.

The idea that Christians are demanding "special rights" is ludicrous. It's called a pendulum swing, and simply desiring equal treatment is not demanding special rights.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

So, the federal government is not allowed to establish a federal religion. Okay--I'm not suggestnig that it should. The federal government is also not allowed to make any laws about the free exercise of religion. Fine. So, how are Christians "demanding special rights" by wanting the government to stop making laws that affect their free exercise of religion? And why should you care, as long as nobody is trying to force religion on you? And please don't say that being "exposed" to religion "every time you step outside your door" is "forcing" religion on you. Having to put up with the Christians around you is not the same as being forced to believe in and practice Christianity. In fact, it's the 1st Amendment quoted above that guarantees that we all have to put up with the beliefs of those around us.

There I go again getting all heated. Sorry, really.
I think I'll go away now. I'm sure my points will not find support here. That's okay -- it's been fun! :)
6.6.2006 5:56pm
gwangung (mail):
No, I do not equate atheism with the teaching of evolution, but I do believe that evolution as taught in schools is fundamentally opposed to religious teachings and wholly incompatible with most theistic creationism, and the fact that it is taught as fact is wrong.

It happens. It occurs. It can be replicated in the lab.

If that's not a fact, then it's not a viewpoint I can respect, nor is it one I can term as reasonable.
6.6.2006 5:59pm
Colin (mail):
"Surely, it would be fair for all sides of such an important issue to be presented with equal weight, merit, and respect. And please don't try to tell me that doing so would somehow represent a state endorsement of religion."

Not to hijack the thread or anything, but how can you say that you want sectarian religion taught as fact and then insist that no one call that a state endorsement of religion?

"On those grounds, teaching only evolution is even more of a state endorsement of religion (the religion being scientism or secular humanism or atheism or whatever you wish to call it.)"

Let's just call it "empiricism," and say that sectarian theories get equal classtime when they achieve equal empirical success. Empirical, evidence-based science is not exclusive of religion, and does not require or impute an "atheistic" viewpoint.
6.6.2006 5:59pm
MixChael222 (mail):
Bored Lawyer,

Thanks for your comment -- that makes great sense to me.

Nicely stated!

(I am not a lawyer or a law student, just a writer with an occasionally hot head, who'd better get back to work!)
6.6.2006 5:59pm
Colin (mail):
To swing back onto topic, Professor Volokh wrote, "I agree entirely with the bottom line, and almost entirely with the analysis."

I'm curious, what would you change about the analysis?
6.6.2006 6:00pm
Bored Lawyer:

Bored Lawyer,

Thanks for your comment -- that makes great sense to me.

Nicely stated!

(I am not a lawyer or a law student, just a writer with an occasionally hot head, who'd better get back to work!)


As I always say, WORK is a four-letter word.
6.6.2006 6:01pm
Medis:
MixChael222,

I think a lot of people here would agree with the broad principles that you stated. The precise problem, however, is how one distinguishes between government and private action, particularly in "public".

For example, I think most here would agree that if the government sets up a public forum (a place where members of the public can come to express themselves to each other), the government should not prohibit religious people from using such a forum to communicate a religious message. And effectively, that is what the ACLU argues has happened in the "Awesome God" case.

But now suppose those religious people want to place their religious message on the side of a government building. That is also an example of them wanting to communicate their message to the public, but now they want to use a government building as their billboard.

Of course, if the government would let any member of the public put up a message, then the side of the building is like a public forum. But if the government starts picking which messages it will allow people to put up, and starts picking religious messages, then many of us would have a problem.

And that is because this case would no longer be about those religious people getting the same rights as anyone else. It would now be about those religious people getting preferential treatment from the government.
6.6.2006 6:17pm
Michelle Dulak Thomson (mail):
N. I.,

And your notion that all Christians want is to be left alone is laughable. If that were true, the girl in New Jersey wouldn't have asked to sing the religious song in the first place -- she would have sung it in church instead. Rather, she expects unbelievers in the audience to politely and quietly listen while she sings about how awesome God is.

You want to see a really appalling Establishment Clause violation? Every year, at the University of California at Berkeley, the University Symphony and soloists provide an opportunity for paying audience-members to sing the choral parts of Handel's Messiah. Every year! Hundreds of people show up to sing about the birth of Christ on a public university campus. Worse yet, University employees are involved. And the whole thing is insidiously disguised as a benefit concert for a program for the education of young musicians, whereas obviously it's actually a ploy to praise Jesus on the public dime. For that matter, Cal's Symphony and Chorus have performed many, many works with explicitly Christian themes. They do it every year; heck, the choruses practically do it every concert.

Seriously, N. I., have you considered the possibility that the girl in question wasn't trying to proselytize, but simply singing a song she liked? And would you really want all music with religious texts banned from performance in public schools? If UC/Berkeley's performing ensembles were to be banned from performing, say, the St. Matthew Passion of Bach, I'd say that's a loss for the students, the potential audience, and in fact everyone except the few anti-religious obsessives who would rather lose a Bach Passion than hear the word "Christus" sung in a public school.
6.6.2006 6:38pm
MixChael222 (mail):
Okay, one last thing:

gwangung,

If that's not a fact, then it's not a viewpoint I can respect, nor is it one I can term as reasonable.

Stating that my religious belief is "not respectable" and "unreasonable" is a poor way to convince me that it has no place in a school. What harm would there be in presenting religious beliefs as an alternative to the scientific beliefs that are taught? I'm talking about simply presenting the information, not proseltyzing. The instructor could say "Here is Theory A (evolution), Theory B (creation), Theory C (intelligent design) Theory D (There Is No Reality, This Is All A Figment Of Your Imagination), and Theory X (Whatever). You decide for yourself." Isn't that more fair than saying "Here is Theory A. It is a fact. I will not even make any mention of opposing theories, because that would mean I am endorsing them."
I'm not saying the science classroom is the best venue for such a presentation, but a public science classroom teacher promoting evolution as fact (with no mention of opposing viewpoints) is a perfect example of the state endorsing one religion over another, because the belief in evolution (which many religious people find to be absurd) is a form of religious belief (because the theory is contrary to religious teaching, even if it is not explicitly religious).
This kind of compromise may not be acceptable, but then, neither is the promotion of only one belief system (evolution).
Sorry for dragging this thread so far off topic. I am really done with this.
6.6.2006 7:03pm
Colin (mail):
You want to see a really appalling Establishment Clause violation?

Am I the only person who read N.I.'s comment in which he wrote, "I agree with you that there's no real harm in allowing a child to sing a Christian song, but this isn't most establishment cases"? Or later, when he wrote, "While I think allowing the student to sing the religious song is arguably establishment since it puts the audience in the position of having to respectfully sit quietly while she acknowledges her God, I also think that it's sufficiently de minimus that the equal rights for Christians ought to prevail"?
6.6.2006 7:23pm
Raider Nation (mail):
This is an Alliance Defense Fund case that the ACLU is shamelessly promoting as their own.

Go to www.telladf.org and search "Awesome God."

Poor Olivia Turton is another token in the ACLU's cynical PR campaign. The ACLU has done far more to destroy religious liberty and the public acknowledgment of our founding principles than an amicus brief here and there will cure.

The founder of the ACLU's strategy is alive and well:

“Do steer away from making it look like a Socialist enterprise...We want also to look like patriots in everything we do...If I aid the reactionaries to get free speech now and then, if I go outside the class struggle to fight against censorship, it is only because those liberties help to create a more hospitable atmosphere for the working class.”
6.6.2006 7:28pm
Colin (mail):
Isn't that more fair than saying "Here is Theory A. It is a fact. I will not even make any mention of opposing theories, because that would mean I am endorsing them."

Science is not about fairness, it is about accuracy. “Theory A” is scientifically accurate, reproducible by people of any faith, and open to any dissenting theory that can prove its postulates. The others are promulgated solely by religious groups for religious purposes and exclusive of any dissent. If you want to adopt a purely postmodern approach to education, teaching whatever some arbitrarily politically powerful group wants students to believe rather than adopting a standard of accuracy, then we can have that discussion... but something tells me that you aren’t really all that committed to postmodernism.

[A] public science classroom teacher promoting evolution as fact . . . is a perfect example of the state endorsing one religion over another, because the belief in evolution (which many religious people find to be absurd) is a form of religious belief (because the theory is contrary to religious teaching, even if it is not explicitly religious).

Teaching evolution is religion, because evolution is religious belief, because evolution is contrary to some religious teaching, even if it is not explicitly religious? What? In other words, Theory A is X because it is contrary to belief in X, even if it is not explicitly X. That is nonsensical, unless you define “religion” so broadly that it loses all discrete meaning.

Aside from the illogical nature of the statement, I fail to see how science is “contrary to religious teaching.” It may be contrary to some religious teaching, but every message - including “you must pay your taxes” - is contrary to some religious teaching. If society must strike a compromise, as seems obvious, then empiricism seems like a reasonable place to draw it.
6.6.2006 7:42pm
Michelle Dulak Thomson (mail):
Colin,

Am I the only person who read N.I.'s comment in which he wrote, "I agree with you that there's no real harm in allowing a child to sing a Christian song, but this isn't most establishment cases"? Or later, when he wrote, "While I think allowing the student to sing the religious song is arguably establishment since it puts the audience in the position of having to respectfully sit quietly while she acknowledges her God, I also think that it's sufficiently de minim[i]s that the equal rights for Christians ought to prevail"?

Yes, I read these things. I noticed, as you apparently haven't, that they're inconsistent with one another. I can't tell from the two posts whether N. I. thinks a second-grader singing a religious text is "establishment" or not. I don't think so.
6.6.2006 7:54pm
FlyingCamel (mail):
Court proceedings are public record, and oral arguments for the case are July 3rd. Arguing the case is the Alliance Defense Fund, not the ACLU. (A friend-of-the-court brief does not necessarily a genuine "friend" make.) Given the bigger picture I too would make an educated guess that this case is merely a token case for the ACLU. If the ACLU were really devoted to religious freedom, they wouldn't spend so much time silencing Christian speech. As the old saying goes, "Even a broken clock is right twice a day."
6.6.2006 8:46pm
Richard Aubrey (mail):
Michelle Thomson:

There was a case in Utah several years ago which went to SCOTUS. A Jewish girl in a high school tried out for and made one of the choral groups, upon which she found they sang Christmas carols at Christmas. Recovering from the shock, she sued and the kids were enjoined from Christmas caroling. Went all the way to the top, as I say.

My own opinion of the case is that, besides the establishment issue, the kid's parents were aging hippies looking for one more fight and figured this was it. Made the kid do it, lacking the guts to find a grown-up issue.
6.6.2006 8:47pm
Medis:
MixChael222,

You ask: "What harm would there be in presenting religious beliefs as an alternative to the scientific beliefs that are taught?"

Because to tell children that they should consider a particular religious dogma as a viable "alternative" to a scientific theory (which can only mean that they should consider accepting that religious dogma as true despite the best empirical evidence and applications of logic that science can muster) is to endorse the very notion of religious dogma--the idea that some religious doctrines should be accepted as true without proof because of some claimed religious authority.

To see why that might be a bad idea, consider the opposite possibility. For example, consider a public school science teacher leading a discussion about the various ways in which science might show that what the Bible describes could not be literally true. Would you say in response to that, "What harm would there be in presenting scientific beliefs as an alternative to religious beliefs?"

In short, the state should not be trying to mediate between science and religion. And that is because that relationship--the relationship between science and religion--is itself a religious matter. And you might want to consider if you really want the state to take over instructing your children in this matter.
6.6.2006 9:06pm
NI:
Michelle, I don't think my two statements were inconsistent. What I meant to say is that even though technically this may be an establishment violation, it's one that is so minor that it isn't really worth fighting over, so I would just let her sing. Even I will acknowledge that you have to pick your battles, and not every technical legal violation deserves to be litigated.

Bored Lawyer, you are right that only state action implicates the First Amendment and not all of my examples were state action (though all of them have the same cumulative psychological effect on those of us who aren't members of the majority faiths). But there are plenty that are state action: public schools, government bodies that open with prayer, government currency that carries theist slogans, all of those are clearly state action.

Now, you can argue, with some plausibility, that I suffer no actual personal harm by carrying dollars in my wallet that say In God We Trust. In fact, I probably have a First Amendment right to cross out the offending words with a black magic marker if I really feel strongly about it. I would respond that you would probably suffer no actual harm if I tapped your telephone lines or read your mail either -- if someone from the Department of Homeland Security wants to listen to my mother tell me on the phone about her aches and pains, why should I care? But a lack of tangible harm isn't the point. The point is that in a free society there are some things government doesn't do, and one of them is making second class citizens out of religious minorities.
6.6.2006 9:46pm
Medis:
Richard,

Are you talking about the Rachel Bauchman case?

If so, then it actually didn't get past the 10th Circuit, because the Supreme Court denied cert.

Also, both the District Court and the 10th Circuit dismissed the complaint. The more controversial aspect of that case is that the District Court refused to allow Bauchman to amend the complaint to add factual allegations about her teacher Torgerson's past activities, and the 10th Circuit held that amendment would have been futile because those allegations would go only to Torgerson's motives, and not his purpose, during his conduct with respect to Bauchman.

Regardless of what you feel about merits of that distinction between motive and purpose (and the dissenting judge takes the majority to task for drawing it), the alleged past conduct of the teacher was pretty outside the pale. Quoting from the dissent, who is quoting from the proposed amendments to the complaint:

"In 1977, while employed as director of the A Cappella Choir Class at South High School in Salt Lake City, Torgerson forced the students in his Choir class to attend the offering of prayers and sacraments at LDS worship services a[s] part of the regular, required, graded public school curriculum.

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During 1980, through his position as the director of the A Cappella Choir Class at South High School, Torgerson used an application form for admission to the Choir Class that inquired as to the applicant's religious affiliation. Torgerson inquired about the applicants religious affiliations in order to limit the Choir Class to members of the Church of Jesus Christ of Latter-Day Saints ('LDS Church') because the Choir Class regularly participated in LDS religious services, which participation included speaking and singing presentations by students. The Choir Class did not participate in the religious services of any other religious organization.

During the 1992-93 school year, when Torgerson was employed as the director of the A Cappella Choir class at West High School, Torgerson required the Choir Class to perform approximately once each month at LDS worship services.

····

During the 1992-93 school year, and in the years following, Torgerson frequently discussed the religious content of the many religious devotional songs he required the West High School Choir Classes to sing and used the religious content of the songs to advocate his own religious beliefs.

During the 1993-94 school year, while employed as the director of the A Cappella Choir Class at West High School, Torgerson repeatedly advocated his religion in the Choir Class, frequently stated that he was aware of and disagreed with the United States Supreme Court decisions forbidding the advocacy of religion in public school classes, and frequently stated that he would continue in his advocacy of religion in public school classes even though he knew that doing so violated established law.

During the 1993-94 school year, Torgerson required the West High School Choir Classes to practice the religious song, 'Lamb of God.' During the practicing of 'Lamb of God,' Torgerson turned off the lights in the classroom and, to the outrage of several students, instructed the Choir Class to visualize 'Jesus dying for our sins.'

····

During [a] Pacific Northwest Tour in Salem, Oregon, the West High School Choir Class performed at an LDS 'fireside' service, where Torgerson portrayed the Choir Class as an LDS religious choir. At the 'fireside', LDS Choir Class members 'bore their testimonies' about their personal relationship with Jesus and proclaimed that the LDS Church is the only true religion. The Choir Class performed solely Christian devotional music as part of the LDS worship services."

Of course, these are just allegations, and were never subject to trial. Still, I think most people--indeed, most Christians--would find this pattern of conduct, if true, to be pretty disturbing.
6.6.2006 9:49pm
Richard Aubrey (mail):
Medis. I believe that is the case. I had thought it went all the way. My mistake.

The other actions of the director were not at issue, but, as the saying goes on Law and Order--when I used to watch it--were used to impeach the defendant or something.

The case at issue was Christmas carols at Christmas and the other stuff was flavoring.

I believe it was after this that public high schools put a secular song into their Christmas programs. One I saw had "Kung Fu Fighting", and it was well done. So the non-Christians who were attending the Christmas concert were made whole. I felt so much better for them.

Crap, all of it.

As if Christianity or any religion had a material or temporal character and if you weren't careful, you'd get it in your ears and nose and stuff.
6.6.2006 10:35pm
Medis:
Richard,

First, as an aside, it would be odd for anyone to change their practices after Ms. Bauchman's case, because the District Court dismissed her complaint, and the 10th Circuit affirmed.

Anyway, if you are in fact thinking of Bauchman, those aren't the facts as alleged. It didn't have anything to do with a Christmas program. Rather, as per the majority opinion:

"By way of her original complaint and proposed amended complaint, Ms. Bauchman, who is Jewish, generally alleges Mr. Torgerson 'engaged for many years, and continues to engage, in the advocacy, promotion, endorsement and proselytizing of his [Mormon] religious beliefs and practices' during his public school classes and Choir performances. More specifically, she claims (1) as a member of the Choir she was required to perform a preponderance of Christian devotional music; (2) Mr. Torgerson selected songs for the religious messages they conveyed; (3) the Choir was required to perform Christian devotional songs at religious sites dominated by crucifixes and other religious symbols; (4) Mr. Torgerson selected religious sites for Choir performances with the purpose and effect of publicly identifying the Choir with religious institutions; (5) Mr. Torgerson berated and ostracized students, like herself, who dissented against his religious advocacy; (6) Mr. Torgerson covertly organized a Choir tour for select Choir members to perform religious songs at religious venues in southern California; and (7) Mr. Torgerson deliberately scheduled the Choir to sing two explicitly Christian devotional songs during West High School's 1995 graduation."
6.6.2006 10:54pm
Richard Aubrey (mail):
Medis. You think there's another reason to put "Kung Fu Fighting" in a Christmas carol program?

As a lawyer ought to know--indeed, it's one of your most useful tools--the fear of being bankrupted defending oneself against a frivolous lawsuit threatened for the purpose of instilling fear of being bankrupted in order to make the other party concede concentrates the mind wonderfully.

So don't go all innocent about cases being turned down a million dollars later.

The student was not surprised when this happened, if it had been happening as advertised. There was, shortly before, a case of the first girl to try to get into one of the ancient private military academies in, I think, Virginia. After it all shook out, she said, "nobody thought of me in all this", which was both true and unsurprising. She, all unknowing, got drafted into an adult fight.
These kids are shoved into the situation by parents who have no balls for the fight themselves. Bastards.

The school choir was either in violation of the establishment clause or it was not. It could not possibly have been either a secret or news to the student. The whole thing could have been handled better. I'm glad to see some concern for teachers berating kids for their beliefs. The concern has to start someplace. Better late than never.

My wife is a teacher and we have taken kids on trips from twenty miles to as far as Europe and Mexico. How do you "covertly" organize a tour? Who doesn't know? Who, who should know, doesn't know? Who, who doesn't know, is supposed to know? When in Spain and Mexico, we went to cathedrals. Is that a problem? Some tours go to Santiago de Compostela, a famous pilgrim destination. Could really get contaminated there. I see another lawsuit. "covertly". Sort of like liberals who claim some aspect of US policy is "secret" even if everybody knows it. It's supposed to add to the ominousity quotient. BS.

Mr. T "deliberately" scheduled the choir....? I'm sure he did. How would you do it by accident? Loaded words here, which ought to generate suspicion. If the facts were sufficient, decoration would be unnecessary.

If you go to religious sites to sing, what would you sing? If a choir is invited to perform in a church, would you suggest they eschew relgious songs? Torgerson may have been a bastard in class--could be a matter of additional flavoring--but the rest of the accusations are milk. Skim milk.

I went to a professional organization's Christmas meeting. A particularly good madrigal group from a local high school had been invited to perform. It took us a while to rip out the Muzak speakers which couldn't be shut off, and then the kids did a fabulous job. They sang religious songs. School program. Robes and all. Problem?

This was a crap case and should never have seen the light of day. If Torgerson was as bad as advertised in class, he could even have lost his job. If he was as bad, he should have. Tenure isn't iron-clad and good administrators know how to build paper. Two issues. This guy in class, and the choral programs. The two should not have been mixed.
6.7.2006 1:00am
Medis:
Richard,

The case was dismissed on the complaint. That means the courts held that even assuming the facts were as alleged, the complaint did not make out a legal claim for which relief could be granted. So, I'm not sure what more you want the legal system to do.

Second, your reasoning more or less tracked the reasoning of the courts. Their basic point was that the things the teacher did under color of state law could have had a secular purpose, and they held that all the other alleged evidence of the teacher's consistent practice of improperly prostelytizing his students did not show that there was a religious purpose, as distinct from a religious motive, behind the teacher's offical actions with respect to Ms. Bauchman.

Personally, I think that is a dubious distinction, but in any event your views won in this case, and actually won on the complaint. So why are you so upset about it?

And, frankly, you were wrong about many of the facts of this case when you originally described it. Doesn't that bother you at all?
6.7.2006 9:33am
Richard Aubrey (mail):
Medis. Yes. My memory is beginning to bother me.

There are two issues I have with this case. One is, as I've said, many people were put into positions of difficulty--testifying instead of being in school, possibly--and had to hire lawyers the bills for which were probably not reimbursed. This sort of thing gets the attention of other school systems who will do weird stuff to avoid as I say, not losing a case, but not providing a pretense for somebody with leftover issues to bring one, such as putting "Kung Fu Fighting" into a Christmas concert, the only non-Christmas song in the whole program. Another school put one secular song, "Turkey in The Straw" into their Christmas program. Crazy. But the fact that the case eventually went the reasonable way is better only than if it had not. It was still a major problem for all concerned. Unnecessarily.

Second, the use of a kid to walk point on this. Vile. Grownups should fight their own battles. The military academy case was worse, at least that I saw. The poor girl who went through hell finally figured out she was a tool and "nobody thought about me". I have no idea if Bauchman was similarly affected, having heard nothing further, but the pretense that she was surprised is simply insupportable.
6.7.2006 11:43am
Medis:
Richard,

But again, the case was dismissed on the complaint. Hence, no discovery and no trial.

Also, I see no reason for you to conclude that this lawsuit constituted using Rachel Bauchman against her will. Indeed, a major component of her complaint was that her teacher organized a campaign of harrassment among other students and parents when she initially complained to the teacher about his acts. I could easily see that making a 16-year-old girl mad enough to want to sue.

Finally, I think it is a bit silly to claim that she must have known what she was getting into. She eventually alleges something like a 17-year pattern of misconduct by this teacher, but people do not make a regular practice of investigating their teachers before signing up for a class. Indeed, I think it is reasonable for public school students to assume that their teachers will not try to prostelytize them, and not try to punish them if they object.

To summarize: your original, and now continued, misrepresentation of this case was material in at least two respects. First, this case never got to the Supreme Court, and never even got past the complaint, and so any worries about significant litigation expenses associated with such cases would be unfounded. Second, the facts motivating the lawsuit were ultimately more about the alleged misconduct by this particular teacher than the mere fact the group performed some religious music. And I think we agree that even if the US Constitution provides no remedy for this particular form of teacher misconduct, it would not be a bad thing for schools to try to police their teachers in order to avoid such lawsuits in the future.

Finally, insofar as schools do in fact overreact to the mere existence of such cases (of course, I have no independent way of confirming what you claim to remember), and they do so irrespective of the actual outcome of the cases, I'm not sure how much can be done about that problem.

But clearly, it is only going to make this problem worse if people misconstrue the facts of such cases to make them sound more trivial than they actually were, and then also misrepresent how successful the cases actually were. In other words, such misrepresentations, if taken seriously, make the litigation risk faced by schools sound much worse than it actually is, which in turn might push them to be excessively cautious.

In short, Richard, it seems to me that YOU are contributing to the problem you are identifying by misrepresenting cases like this. And so you might want to consider being more careful about what you say in the future--provided, of course, that you really are interested in preventing this hysteria, as opposed to wanting to feed it.
6.7.2006 12:29pm
Rational Actor:
Medis -
In Richard's defense, I would just like to say that I am grateful to him for the suggestion of "Kung Fu Fighting" as an appropriate non-religious song to be sung around the time of the Winter Solstice. My children attend a school which forces the students to sing songs that celebrate Christmas, Hannukah and Kwanzaa, and I will propose that KFF be added to provide full balance. With luck, it will receive a warmer response than my last suggestion for a non-religious contribtion to the festivities, "Holiday in Cambodia."
6.7.2006 1:45pm
Richard Aubrey (mail):
Rational. Only Christian songs are "religious" in that situation. Hannukah, as some folks never tire of reminding us, is cultural/military/historical, and Kwaanza is made up crap. So KFF isn't necessary. You've got one and more secular songs to protect the group. Besides, for this purpose, only Christianity is a religion. Other religions get the protection of the First Amendment when they ask for it, but none are considered threats when accidentally encountered. In a way, that's a kind of compliment to the power of Christianity. You can be damaged just by walking past a few bars of a hymn.

Medis. You might have to investigate a teacher to see if, say, his students do poorly on the SATs in his field. You don't have to do research to see what public performances are like, nor to hear what students are saying.
I found out that, if I keep my mouth shut in the presence of junior high students for three minutes, I am not there and the truth comes out. What I heard from my kids and their friends about certain teachers was repeated precisely by a completely different group several years later about the same teachers. No "research" is necessary for those kids.
6.7.2006 2:44pm
Tal Benschar (mail):

Bored Lawyer, you are right that only state action implicates the First Amendment and not all of my examples were state action (though all of them have the same cumulative psychological effect on those of us who aren't members of the majority faiths). But there are plenty that are state action: public schools, government bodies that open with prayer, government currency that carries theist slogans, all of those are clearly state action.

Now, you can argue, with some plausibility, that I suffer no actual personal harm by carrying dollars in my wallet that say In God We Trust. In fact, I probably have a First Amendment right to cross out the offending words with a black magic marker if I really feel strongly about it. I would respond that you would probably suffer no actual harm if I tapped your telephone lines or read your mail either -- if someone from the Department of Homeland Security wants to listen to my mother tell me on the phone about her aches and pains, why should I care? But a lack of tangible harm isn't the point. The point is that in a free society there are some things government doesn't do, and one of them is making second class citizens out of religious minorities



Your analogy to 4th amendment is not an apt one. The 4th amendment clearly protects the interests of citizens in privacy -- "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." So if the govt. invades my "security" by, say, reading my mail without just cause or a warrant, I have suffered a constitutional injury regardless of whether they discovery my deepest, darkest secret or merely read the 5-millionth credit card offering mailed to me.

Nothing in the Constitution protects one's "feelings" of being an "outsider" or in the minority on certain issues -- be they religion or other matters of opinion. The Establishment Clause is not there to protect your feelings. It is there to stop the abuse inherent in the Govt. setting up an official Church to which all owe homage and which is supported by tax money.

The fact is, the vast majority of people in the country are theists of one stripe or another, and the country has a long tradition of theism. You are entitled to disagree and the govt. may not persecute you for disagreeing. But no provision of the Constitution guarantees your feeling comfortable or feeling as though you were in the majority.

You mention three things that are state action: "public schools, government bodies that open with prayer, government currency that carries theist slogans . . ."

I don't know what you mean by "public schools" -- what does that have to do with anything?

As to the other two, these are merely cermonial recognition of the country's religious foundation -- "cermonial Deism" I think someone called it once. Like it or not, American intelelctual history and govt. institutions have a strong religious foundation going back at least a century before the Revolution. The country's founding document speaks of rights "endowed by the[] Creator." That this is recognized from time to time is perfectly natural and expected.

Now I understand you don't like these actions and that you might even feel uncomfortable. But really, saying that these actions are "making second class citizens out of religious minorities" is gross hyperbole.

If the worst "injury" an atheist suffers in America is feeling a bit uncomfortable (read 'reminded he is in the minority') when he sees a dollar bill or hears a prayer opening a session of Congress, then we are a remakrably tolerant society when it comes to atheists.
6.7.2006 2:58pm
Medis:
Richard,

First, again, this case is not just about what music they played.

And your attempt to charge her with prior knowledge of everything that happened is really silly. You are charging this girl with constructive knowledge of everything that this teacher was going to do to her as an individual based on the assumption that other students must have known in advance what he was going to do to her as an individual. Of course, that is not a reasonable assumption about the state of knowledge of these other students, let alone hers. You also are charging her with constructive knowledge of things he did as long as 17 years ago, on the theory that institutional memory would somehow preserve all this information forever.

And frankly, why does this matter? She has every right to take a class without being prostelytized, and without being punished for objecting. You are implying that she has no right to object if she can be charged with knowledge of similar misconduct by this teacher in the past, but why should what the teacher has done in the past give him the blanket right to keep doing it in the future?
6.7.2006 3:22pm
Richard Aubrey (mail):
Medis. Since previous actions are likely predictors of later actions, Torgerson's history can't be ignored. She didn't know exactly what he would do. In fact, she doesn't know now exactly what he did do, if you refine "exactly" sufficiently, which is what you need to do support your point.

His history was sufficient to demonstrate she would have a hard time in his class, the exact nature of the hard time being unknown, and unimportant in regards to the question of whether she could anticipate a hard time in his class.

So when she got into his class--knowing in advance he was a bastard [presuming for the sake of argument that the allegations are valid]--she got about what could have been expected. My question is whether she knew or should have known. "Should have known" is sufficient to get people into trouble when they didn't know, so I expect it could be applied here. I can't believe, based on my experience directly and indirectly through my kids, their friends and others I worked with in athletics and youth groups, that she didn't know, and to avoid "should have known", she'd have had to have been in some other school.
It is one thing to say Torgerson--presuming the facts as alleged--shouldn't have done what he did, and another entirely to say that she couldn't have known.


My kids didn't know exactly how a particular teacher's personality quirks and incompetence would play out, but it transpired that the personality quirks and incompetence did, indeed, play out, the kids' lack of detailed knowledge in advance notwithstanding. So your point is not applicable. She knew or should have known, if the facts are as alleged, that this would be an uncomfortable situation. She went ahead. Why? Either she wanted to on her own, which seems unlikely, or she was pushed.

Who said the teacher had a blanket right to keep doing this stuff in the future? Why, it was Medis. What a foolish thing for Medis to say.

Torgerson had had his job long enough to have satisfied the administration, the school board, and parents of a number of kids over the years. All of a sudden, one kid finds it difficult? Suspicious. The only solution to this conundrum, which no doubt will occur to you, is that everybody else in the entire situation, including class after class of kids, were crypto-Nazis who either loved the sadism of authority, or were safe from it, being crypto-Nazis like the teacher. Failing that, it remains suspicious.

Now, I know that not every principal is full of principle. Complaining about an incompetent drunk in my kids' junior high brought the response from the principal that the guy would have to retire some time. I know of another situation where the only conceivable answer is that the teacher in question has something serious on the principal. Or the real principal was kidnapped and replaced by a clone with an IQ of twelve. So maybe Torgerson buffaloed the entire system for years. But that needs to be shown. Otherwise, his years of employment make the single complaint suspicious.

My daughter worked, for a time, under a teacher whose sins were considerably less severe than Torgerson's. The last straw was when, on a trip to Spain with kids, she was given and drank an alcoholic drink at a restaurant when the waiter found it was her birthday. She lost her job. Torgerson could have been gone years before this, should have been gone, if he acted as alleged. Not easy, but simple. Hence, as I say, my suspicion.

Anyway, if Torgerson's in-class activities are all that count, why the lathering about "covert" trips and song choice?
6.7.2006 3:49pm
N.I.:
Tal, you've simply defined away the issues. Reading your mail is a constitutional violation; officially recognizing theism isn't.

If I read your mail and discover your deepest, darkest secret, you'll feel uncomfortable and maybe even violated, but so what? I mean, that's your answer to atheists: You feel uncomfortable but so what.

I daresay that many constitutional rights protect little more than feelings. If Black people have to ride at the back of the bus, well, they get to their destination just as fast as the people at the front of the bus (except for the extra five minutes it takes to get on and off the bus). If making them sit at the back makes them uncomfortable, so what?

If the police search your home without probable cause, so what? You may feel uncomfortable and violated but you can always just clean up the mess they made and get on with your life.

Indeed, suppose a God-hating government came to power and began placing restrictions on religion: You can't go to church until you're 18, you can't say nasty things about gays, you can't sell kosher meat, you can't take Good Friday off as a holiday whether your employer cares or not, etc etc etc. A court, so inclined, could analyze every one of these hypotheticals as being of purely emotional harm and tell the plaintiffs, OK, so you're uncomfortable, but so what? The Constitution doesn't protect emotions.

If that's your standard, then kiss most of the Bill of Rights goodbye.
6.7.2006 3:59pm
Medis:
Richard,

Again, even supposing that she "should have known" what he was going to do (which I think is a pretty ridiculous claim), why should that matter? If you aren't saying that she waives her right to object to misconduct by her teacher if she knows that her teacher has engaged in similar misconduct in the past, then exactly what are you saying?

By the way, the simple answer to your "conundrum" is not that his prior students were all "crypto-Nazis". The far simpler answer is that they were all or mostly Mormons, and that if there were any other non-Mormons, they simply went along with being prostelytized because they didn't want to be subject to harassment by their Mormon peers and their parents.

Finally, you ask why any of this matters. As I have explained several times now, the courts ultimately held that that these issues did not matter to her constitutional claims, because this evidence only went to his motives, and not his purpose, for doing the official acts in question. But I thought we agreed that regardless of whether she had a constitutional claim, the alleged conduct by this teacher did in fact amount to MISconduct.

Anyway, I think we have gotten all we can out of this case. As I noted, by continually misrepresenting the facts of the case, you are personally contributing to the hysteria which you claim to see as a problem. Further, I think your attempts to argue that this girl should have just accepted her teacher's misconduct because she should have known he was going to do it are both legally unsound and morally repugnant.

Finally, I would suggest that you seem more interested in clinging to your outrage over this case--or rather what you thought this case involved--than you are in discussing the actual facts of the case in good faith. And I gather there is little I can say to persuade you to give up on your outrage.
6.7.2006 4:43pm
Richard Aubrey (mail):
Medis. One thing that keeps me interested in this discussion is your deliberate misrepresentation of my points.

I did not say she waived her right to object to Torgerson's treatment. I grant you I gave you the opportunity to try to get that one by, but I didn't say it. If I could make money betting with myself, I'd be richer following this discussion. I won ten bucks with that one. You will note I never said anything of the kind, but it did give you the opportunity to pretend I did.

I said that her certain knowledge of what she would be facing makes her decision to go ahead with it a question. The possible answers are, 1, it wasn't as bad as later alleged for dramatic purposes, 2, she didn't expect to mind but did, and, my personal favorite, 3, she was pushed.

It would have to be shown that either all the kids were not only Mormons, but Mormons of Togerson's particular level of zeal (presuming slackers would get a ration of crap, too), or some were not and got hammered but kept quiet and none of them--these are kids, you know--Mormons or not ever said anything. And that the Mormon kids liked watching non-Mormons getting hammered in class. You want to go there?

And he had been employed for how long? Doesn't that raise a flag?

The whole thing stinks. There is more to be angry about besides song choice. As I say, if song choice were not an issue, why is it alleged as an issue? But there is more.
6.7.2006 5:00pm
Medis:
At this point, Richard, I can only repeat that I believe you are more interested in clinging to your outrage than in addressing the actual case. Unfortunately, I didn't bet on the fact that you would continue to rationalize your outrage even when the facts turned out to be very different from what you originally claimed.
6.7.2006 6:04pm
Richard Aubrey (mail):
Medis. The outrage was considerable. The entire thing, as you have seen, is outrageous.

I am not rationalizing when I say the kid was almost certainly pushed. I was upset about that when the case first hit the news, ditto the poor kid who was shoved into VMI or wherever it was. And that was 'way back.

I was initially upset when the kid insisted to be shocked by what she found. Either she was lying deliberately on her own, or, more likely, at the behest of her parents.

I later found that Torgerson was accused of being a schmuck, which meant I could be upset with the fact, if true, and with the administration, if true, for keeping him on, and with the entire case, since, as seems likely, his schmuckness was overblown.

None of this is new, although I will admit to having to go back to some notes I made after going around on this with a member of an church-state separation group before the case was finished. I should have done that sooner.

To go back to the original point of the thread, the second-grader whose song was disallowed, we have a problem, and the school's caution is almost certainly a result of hearing of cases like this one. Nobody wants the hassle, even if they win.

There are several advocacy/litigation groups who take these cases and there is practically always one in court someplace in which the school acted like absolute morons. The question is whether they are naturally morons, which seems to be the case sometimes, or whether they are looking over their shoulder at litigation going on for years.

As Wellington is said to have observed, the next saddest thing to a battle lost is a battle won. He would know. The same is true of lawsuits, and to try to say nobody in the school lost anything because the case was originally settled on their behalf is silly.
6.7.2006 9:13pm
Bored Lawyer (aka Tal Benschar):
NI, let's try this one more time.

The issue is what the Constitutional provision is meant to protect or protect against. The Establishment Clause is simply NOT meant to protect you from feeling uncomfortable because your opinion is in the minority. There is no basis for that in its history (notwithstanding what some Justices think).

All of the other examples you gave are clear violations of the rights provided in the relevant Constitutional provision. That, for example, my privacy has been invaded is a harm because the common law and the Fourth Amendment say I have a right to privacy. Whether the harm is intangible or tangible or merely "emotional" has nothing to do with it.


The Equal Protection Clause means, at least, that the law cannot put one race above another. Unequal legal treatment on racial grounds violates that right. Again, there is a legal right to be treated equally regardless of race, and your example violates that right.

A law which says I cannot attend Church except under certain conditions restricts my liberty. Same with all the other hypothetical examples you give -- they are restrictions on ACTIONS which in a free society one is entitled to make, and if the purpose is to discriminate against religion per se then we have a Free Exercise clause violation.

AFAIK, there are no laws in the U.S. which discriminate against atheists. They can do, legally, anything a theist can do. So they suffer no legal disadvantage other than occassionally feeling that their opinion is in the minority and not in consonance with the dominant philosopohy of the country. THAT is simply not a Constitutional violation.

Let's use another example to make the point. X believes that an absolute monarchy or a dictatorship is the best form of government. (X is in good company, BTW. No less a philosopher than Plato agrees with him!) X is entitled to his belief under the First Amendment. He is entitled to express his belief and the govt. could not deprive him of civil rights merely for hold that belief.

Yet it is clear that X's opinion is one held by only a tiny minority in this country, and is contrary to the intellectual and philosophical foundations of our govt.

X is constantly reminded of his minority-opinion position. Every election is an affront to his ideas. Every sappy GET OUT THE VOTE or VOTE, IT'S YOUR CIVIC DUTY advertisement gets under his skin. Every time a politician opens his or her mouth and exclaims how great democracy is, X is offended. The Fourth of July? Forget it, that's a sad day for X and he is happy if he can forget the meaning of the day.

Have X's rights been violated? No, they haven't. Because while the First Amendment protects one's right to hold a minority or unpopular opinion, and even express it, it does not guarantee one that the opinion will be popular nor that on occassion one will be reminded that you are in the minority.
6.7.2006 10:59pm
N.I.:
OK, Bored Lawyer, I am happy to read that we agree that constitutional violations ought to be rectified whether the harm they cause is tangible, intangible, emotional or even just theoretical. So your earlier question to me about what harm I've suffered is largely irrelevant. That leaves us then with the question of what is and is not a violation of the Establishment Clause.

The Establishment Clause requires government neutrality between religions, but it also requires government neutrality between religion and non-religion. If all it protected against was choosing one religion over another it would have said "Congress shall make no law respecting an establishment of one religion over another." But that's not what it says -- it forbids establishing religion. So, opening the legislature with prayer and putting In God We Trust on the currency may not be as high a priority as the War in Iraq or finding a cure for AIDS, but by any fair reading of the text itself they violate the ban on establishing religion. They prefer religion over non-religion.

Now, I don't think the First Amendment requires government hostility to religion, and I think there have been cases in which religion has unjustly been discriminated against. I don't think atheists have any more right to put slogans on the currency than theists do. (Just out of curiosity, would you find that an acceptable equal protection solution -- theists get to put In God We Trust on some denominations of bills and coins and atheists get to put There's No Evidence God Exists on others?)

But it's intellectual dishonesty to pretend that opening a legislature with prayer is anything other than establishing religion.
6.8.2006 9:20am
non_Lawyer:
N.I.,

It seems your position hangs partly on the definition of "establish." Is acknowledging religion in a government setting "establishing" a state religion? Is making a reference to religion in a public way showing preference to religion over non-religion? Is the only fair way to address this to provide "equal time" to every single minority viewpoint? If not, then perhaps it is to remove religion completely from public/government life. But then, isn't that giving preference to non-religion?

Bored Lawyer,

I liked your hypothetical and would like to see N.I. address it.
6.8.2006 12:19pm
N.I.:
Non_Lawyer, I didn't respond to Bored Lawyer's hypothetical because I thought we were now in agreement that the existence of harm is not the relevant question; the existence of a constitutional violation is. With that understanding, his hypothetical is no longer germane. However, since you want me to respond to it, the short answer is that the Constitution outright forbids monarchy so his harm is founded on a desire to do that which the Constitution forbids. (Not unlike certain theists who want creationism taught in public schools.)

There are two separate religion clauses in the First Amendment -- the Establishment Clause and the Free Exercise Clause. Taken together, they mean that the government should neither help nor hinder religion. It doesn't get any special rights but neither does it get discriminated against. So, if the church gets burglarized or catches fire, there's no Constitutional problem with the police and fire departments responding same as they would to any other property that got burglarized or caught fire.

As for publicly acknowledging it, it depends on what you mean by acknowledge. If a tour group from First Baptist is visiting the state capitol and their senator wants to acknowledge their presence in the gallery, same as he would for any other tour group from his district, that's fine. But if by acknowledge you mean acknowledge as affirmatively true -- ie allowing a chaplain, paid for with tax dollars, to open the meeting with prayer -- then the government is effectively giving religion its stamp of approval, which is where the establishment problem comes in. Failure to acknowledge it in that positive sense is not a preference for non-religion; rather, it is government not taking a position on religion one way or the other.

By the way, I would have far less heartburn about some of these public displays if not for the political reality that there is a well organized band of theists that really does want to turn this country into a theocracy, that essentially had made this country into a theocracy for most of its life, and that is now angry because they are being told by the courts that they have to share power and treat unbelievers as equals. I realize that's not every theist and that not every technical establishment is part of their agenda, but it would be blinking reality to pretend that they don't exist and that they don't want to make America a Christian nation and not in a good sense.
6.8.2006 1:26pm
non_Lawyer:
Can you specify who exactly it is, in your political reality, that "really does want to turn this country into a theocracy"? Sounds kinda like a conspiracy theory without concrete examples. Is this alleged "band of theists" really a serious threat?
You also say that this phantom group has "made this country into a theocracy for most of its life." How do you define theocracy? I understand it to mean "a government ruled by or subject to religious authority." Are you trying to say that the President is also the head of his church, and requires all citizens to be practicing members of his church, and every member of the legislative and judicial branches of the government are also leaders of that same church and are appointed as religious leaders rather than elected or appointed by democratic mechanisms? That citizens who dissent from that church have their citizenship revoked and are cast out of the country? I don't think that is realistic.
On the other hand, if what you mean by "theocracy" is that some members of the government hold religious beliefs, and those beliefs can often inform their political decisions, then I guess the only way to not have a theocracy is to have atheism be a requirement for public service.
I don't doubt that there are some members of the population who would like to see more Christian values espoused by their elected officials. But I somehow doubt that these people would really want to establish a state religion. Again, maybe there are a few peole who want that. Those folks are probably not only very few and far between, but they would certainly fail in such an agenda, due to the Establishment Clause--so they are not a threat. In that way, they would be a lot like Bored Lawyer's monarchist. Obviously, establishing a state religion would be awful for everybody, but I just don't buy that anybody is trying to do that.
6.8.2006 2:41pm
N.I.:
non_lawyer, there are many examples I could cite. Here are some historical examples:

1. In Maryland, until the Supreme Court declared it unconstitutional in 1961, you could not be a notary public without signing a declaration that you believed in God.

2. In many states atheists were not allowed to testify in court as witnesses. As a practical matter, this meant that atheists who got sued, were the victims of a breach of contract, or were injured by another's negligence had no recourse since the courts weren't open to them.

3. I have an acquaintance who was born in 1923 which means he was a public school student in the 1930s. At that time in New York all public school students were required to say the Lord's Prayer at the beginning of every school day. He is Jewish; the prayer violated his conscience; he refused to say it. So every morning for his entire elementary education he would go to the principal's office to receive corporal punishment for refusing to say a sectarian prayer that offended his conscience. Care to hazard a guess as to his opinion of Christians?

4. Blue laws, in which many states forced businesses to close on Sundays. In some states these laws were even known as Lord's Day Acts.

5. A provision in the Massachusetts Constitution (never repealed, incidentally) providing that no one may serve as governor "unless he be of the Christian religion." In Massachusetts, by the way, there are also blasphemy laws, laws against taking the Lord's name in vain, and laws against playing cards on Sunday.

For more current examples:

1. Attempts to teach creationism (and its bastard stepchild intelligent design) in public school biology classes, despite a total lack of scientific evidence for either. A friend of mine teaches science at a public school in rural Texas; he was bluntly told by the administration that they're all Christians so he needed to teach a young earth.

2. More broadly, attempts to run all public school curricula through the filter of Christian morality, including abstinence-only sex education and policies against any mention of gays or lesbians.

3. On the subject of gays, have you been listening to the debates on gay marriage? While the antis have brought forward some secular rationales for their position, most of the rhetoric from the antis has been all about how God says marriage is one man and one woman and the Bible says homosexuality is an abomination.

4. An Alabama statute, upheld on appeal, making it illegal to sell sex toys.

You have made the argument that pushing for Christian values is not the same as establishing a state religion, and technically you are right. But remember, the question we are discussing is whether there are people who want to make America a Christian theocracy, and whether they (or you) call it that or not, the pattern is clear. It isn't enough for them to live as Christians; they want the rest of us to as well.
6.8.2006 3:12pm
non_Lawyer:
N.I.,

Thank you for your thoughtful response. You cited instances of religious (ie. Christian) values seeping into various local and state laws. Your objections to those laws are valid, for the most part. However, I think that when the population's majority religion influences legislation, that is vastly different than attempting to establish a state religion.

You said,

You have made the argument that pushing for Christian values is not the same as establishing a state religion, and technically you are right.

And the "technical" argument really was the thrust of my point; that is, that rhetoric such as "the political reality that there is a well organized band of theists that really does want to turn this country into a theocracy" is pretty far-flung from the reality that in a nation comprised mostly of Christians, there are inevitably going to be a few laws and customs that reflect that religion. My main objection is to the dubious use of the word "theocracy." It has the same flavor as those who, whenever in the minority, try to paint the majority as "fascists" or "dictators" simply because they dislike the way the duly elected officials are runnnig things.

Maybe if we could just get enough atheists elected, we could mitigate the current influence of religion in politics. That's the great thing about democracy, I guess.
6.8.2006 3:34pm
non_Lawyer:
N.I.,

By the way, I am still curious if you can supply any names of individuals or organizations whose explicitly stated goal is to replace America's democratic regime with a theocratic regime (keeping in mind the definition of theocracy that I provided). That is, can you actually identify any of of the members of the "band of theists" whose ominous agenda you described? (By the way, "Band of Theists" sounds like a great name for a death metal group, don't you think?) :)
6.8.2006 5:11pm
N.I.:
Yes, you can check out the theonomists. I don't have any URLs handy but if you run "theonomy" through google you should find plenty. If you look them up tell me what you think.

By the way, I agree that it would be nice to have more unbelievers in elected office but in most of America I don't think someone who admits to being an atheist is electable. I suspect there are elected officials who secretly are atheists but can't say so because it's political suicide. The Almanac of American Politics lists a handful of Members of Congress who have "no religious affiliation." So, that's why atheists have to turn to the courts -- the legislature sure isn't taking our concerns seriously.
6.8.2006 5:59pm
non_Lawyer:
N.I.,

Thanks for the "theonomy" tip. I did some looking around, and this seems to be a pretty good synopsis of the "Band of Theists" of which you spoke. Scary stuff, man, scary stuff. The wikipedia entry on theonomy also provides a useful summary. I have learned something today, and I thank you.
However, I really don't consider such a small group of loonies (yes, they are capital-L Loonies, and yes, they are truly a small minority, and don't represent most theists) to be a real threat, any more than PETA is a threat to the hamburger industry. There will always be extremist groups with whacko agendas, from all sides of the political/social/religious spectrum.
So, I concede your point that there is in fact a "well-organized band of theists that wants to turn this country into a theocracy." But fear not, N.I., their success in that endeavor is about as likely as PETA getting Mr. Ed elected president (thank God! -- or, not-God, in your case).
6.8.2006 6:59pm
Colin (mail):
n_L,

I agree that theonomists and dominionists have had a negligible impact on public policy. That doesn't mean, however, that they've had no effect, and they have been somewhat successful at shifting the public debate on certain issues.

A good (maybe the best) example would be Howard Ahmanson, a leading and very wealthy dominionist. Ahmanson is a major funder of the Discovery Institute, which has had some success using his money to back a political, media, and legal challenge to the science of evolution. They've suffered severe setbacks recently, and aren't likely to have much success in the long run, but I think it's fair to say that Ahmanson's money was instrumental in prolonging a wasteful and somewhat silly national campaign to teach creationism in public schools.

This is not to say, of course, that Ahmanson or any of his fellow travelers are likely to be elected to national office anytime soon. But they do have an impact on mainstream political, cultural, and legal debates, largely by energizing their less radical colleagues.
6.8.2006 7:30pm