Sunday, July 14, 2019

Closing the Door to Establishment Clause Challenges

      The Supreme Court's eventual decision to leave a 40-foot Christian cross standing on government land as a memorial to U.S. soldiers killed in World War I was a foregone conclusion once the justices agreed to hear the case. Church-state separationists braced themselves for defeat with hopes that the Court would inflict as little damage as possible on the constitutional precedents limiting government support for religious displays and religious institutions.
      With the result fully anticipated, experts and advocates on both sides of the issue largely overlooked the damage that the ruling actually does to potential Establishment Clauses in the future. Taking language in the various opinions at the broadest sweep, the ruling in American Legion v. American Humanist Association [June 20] virtually closes federal courts to Establishment Clause cases by leaving potential plaintiffs with no grounds to object in the mine run of cases.
      Justice Samuel Alito's opinion in the case stops just short of formally overruling the much maligned decision in Lemon v. Kurtzman (1971) that set up a three-part test for judging government practices or policies alleged to amount to establishment of religion. In its place, Alito's opinion appears to prohibit only government practices that amount to coercion and gives a constitutional pass to longstanding government actions—as, for example, the 90-year history of the Peace Cross on a centrally located traffic island in suburban Bladensburg, Maryland.
      The Lemon test, adopted with only one justice dissenting, directed courts to determine whether a government practice had a secular purpose, whether a reasonable observer would see it as an endorsement of religion, and whether it resulted in government entanglement with religion. The test has been much maligned through the years, but seemingly only because the second prong actually put some teeth into what church-state separationists views as the religious neutrality promised by the Establishment Clause.
      Applying the Lemon test not at all strictly, the Bladensburg Peace Cross fails, just as the federal appeals court for Maryland ruled in the decision that the Supreme Court reversed. Anyone living in or visiting Bladensburg surely would view an immense cross standing on government property at a gateway to the city as an endorsement of the Christian faith. Try to imagine the monument standing on the grounds of the U.S. Capitol and try to think of it as something other than a singular endorsement of Christianity among any other religious faiths.
      Alito cast the cross as a universal symbol for those lost in World War I, but he overlooked not only the Star of David tombstones for Jewish soldiers but also the actual history of the monument. The Christian pastors who spoke at the dedication in 1925 viewed it in exactly those terms, as symbolic of Jesus' sacrifice at Calvary, which they likened to the sacrifices that fallen soldiers made in defense of liberty worldwide.
      In a separate opinion, Justice Neil Gorsuch drew an important corollary from what he called the Court's decision to scrap Lemon. Gorsuch found it wrong for the Court, in a string of prior decisions, to have allowed Establishment Clause plaintiffs standing based on what he called their status as "offended observers" under Lemon's second prong. "With Lemon now shelved," he wrote, "little excuse will remain for the anomaly of offended observer standing . .  ."
      The individual plaintiffs in the case—one Bladensburg resident and two members of the American Humanist Association or an affiliated group -- would have been knocked out of the case on Gorsuch's premise, perhaps the humanist association itself as well. The government entanglement with the Peace Cross was relatively minimal: a six-figure expenditure by the Maryland-National Capital Park Commission over the years to maintain the monument.
      An earlier Roberts Court decision would cut the legs off an Establishment Clause challenge based solely on the expenditure of government funds. It was Alito who wrote for the Court in a decision, Hein v. Freedom From Religion Foundation (2007), that virtually eliminated taxpayer standing to object to government expenditures to promote or endorse religion generally or one faith over another. The 7-2 ruling in that case gave the Bush administration free rein to reprogram White House expenditures to a newly created Office of Faith-Based and Community Initiatives tasked with promoting faith-based groups nationwide.
      In the new decision, Alito found the Peace Cross unobjectionable based in large part on "its historical importance." As constitutional logic, this reasoning would have undercut any number of important Supreme Court decisions. Imagine if the Brown v. Board Court had given racial segregation a constitutional pass because of the long-standing acceptance of the practice. School-sponsored classroom prayer would also pass muster under what Justice Brett Kavanaugh characterized as Alito's "history and tradition" test unless a court viewed the government-supported conformity as coercive.
      Oddly, Alito revives the idea of the "offended observer" as an additional reason for leaving the Peace Cross undisturbed. Many people, he argued, would view "destroying or defacing the Cross" as "aggressively" hostile toward religion, not neutral. In many other settings, the Court has correctly disregarded the risk of public criticism in weighing its responsibility to enforce the Constitution against prevailing public sentiment.
      The muted reaction to the Court's decision included a statement from the American Civil Liberties Union calling it a "blow against the separation of church and state." But even the ACLU failed to remark on the new barriers the decision appears to erect to enforcing the Establishment Clause.

Saturday, July 6, 2019

On Census, Trump Eyes Executive Order Amidst Chaos

       President Trump threw a tantrum on Twitter after the Supreme Court's decision [June 27] that blocked the administration for now from including a citizenship question as part of the 2020 decennial census. Chief Justice John G. Roberts Jr., hardly a critic of executive branch power, rejected in Department of Commerce v. New York what he called the "contrived" explanation that Commerce Secretary Wilbur Ross gave for including the question in the census form distributed to all U.S. households.
      The Census Bureau, along with Justice Department lawyers, responded to the decision a few days later [July 2] by instructing printers to start printing the questionnaire without the citizenship question. The government had told lower courts and the Supreme Court that the "absolute" deadline for starting the mammoth print job was June 30. Nevertheless, Trump falsely called the announcement "fake news" in a tweet and insisted the administration was still working on a way to include the citizenship question.
      Trump then gave his tweet substance by instructing the Justice Department to come up with some way to get the question in. Justice Department lawyers had to scramble their Fourth of July plans as they went before two federal judges, tails between their legs, to explain the new instructions from their client. By close of business Friday [July 5], the government's new rationale for the citizenship question had yet to emerge, but Trump had raised the possibility of circumventing the courts with an executive order to instruct the Commerce Department to put the question in after all.
      Ross's contrived explanation for the citizenship question, rejected by Roberts and the four liberal justices, rested on a letter from the Justice Department formally requesting a citizenship question supposedly to aid enforcement of the Voting Rights Act. The letter came only after Ross personally asked then-Attorney General Jeff Sessions to get a letter that he could use to justify the question — a letter that Roberts later dismissed as "pretext."
      Ross was forced to contrive an explanation because there is no legally or statistically legitimate reason to include the citizenship question apart from the illegitimate political motive to discourage responses from people living in the United States who are not citizens or are uncertain of their citizenship status. The Constitution requires an "actual enumeration," not an incomplete count. Experts at the Bureau of the Census, part of the Commerce Department, countered Ross's insistence on adding the citizenship question with documented studies showing the question could result in a seven-figure undercount, primarily among Hispanics and non-citizens.
      The Census Bureau answered Ross's continued pressure by showing that a citizenship question would do more than depress the response rate. It would also produce "less complete and accurate" data, they warned: some non-citizen households might lie; others might be mistaken about their status. A better option, the statistical experts advised, would be to match census responses with administrative records already maintained by the government showing citizenship status.
      In a separate opinion written for the four liberals, Justice Stephen G. Breyer related all this information in concluding that Ross's decision was "arbitrary and capricious," administrative law jargon for no good. Roberts would not go that far. Instead, he stopped just short of calling Ross a liar by stating that the secretary's explanation was "incongruent with what the record reveals about the agency's priorities and decisionmaking process."
      Trump further contradicted the administrative record on Friday [July 5] with a new explanation for the citizenship question. "You need it for Congress for districting,” he told reporters in an on-the-run question-and-answer session. “You need it for appropriations — where are the funds going? How many people are there?" That answer in effect validated the allegations by plaintiffs in the two cases that the citizenship question was aimed at reducing the population count in areas with substantial Hispanic communities, all for the purpose of reducing representation in Congress and cutting federal funds to some extent.
      The Supreme Court's decision came in the government's appeal of a decision by U.S. District Court Judge Jesse Furman in a case initiated by immigrant rights groups and joined by New York and other states. A federal judge in Maryland, Judge George Hazel, had similarly ruled against the citizenship question. Hazel added to the government's legal problems on Friday by deciding to expand the case before him into a racial discrimination case. Furman and Hazel had both rested their rulings on administrative law grounds without finding that the administration was intentionally seeking to reduce the population count of minority groups.
      In New York, Furman issued an order noting that the government had acknowledged that his injunction "remains in place" and that it had promised to notify the court before taking any steps to insert the citizenship question. With that said, Furman found no need for a status conference in the case pending further information on the proceedings before Judge Hazel. In Maryland, plaintiffs' attorneys were urging Hazel to issue an extraordinary order prohibiting the administration from saying anything to suggest that the census would include a citizenship question.
      The chaotic maneuverings were aptly described by election law expert Rick Hasen as "amateur hour," but some cynical observers saw a method to the administration's madness. With enough confusion, the response rate among Hispanic communities might be depressed even without the citizenship question. And the question remained whether the administration could get the case back before the Supreme Court and persuade Roberts in the end to go along after all.