Ralph Fertig has been advocating the cause of Kurdish national liberation for nearly a quarter century. But the longtime civil and human rights activist professes not to know much about the Kurdistan Workers’ Party (PKK), which the United States government lists as a foreign terrorist organization.
“I don’t even know who is a member of the PKK,” Fertig told a radio interviewer in Februay. “I work with Kurds,” Fertig explained. “I don’t ask whether they’re members of the PKK.”
Fertig's comments came on the eve of Supreme Court arguments in his constitutional challenge to the federal law making it a crime to provide "material support," including advice or training, to officially designated foreign terrorist groups. For more than decade, Fertig has been helping the Kurds under the threat of a possible criminal prosecution under that law.
The government has not prosecuted Fertig. But in rejecting Fertig's challenge this week, the Supreme Court has given a solid green light to use of this broadly written anti-terrorism law not only against “the worst of the worst” but also in some sense against “the best of the best” — people like Fertig and groups like his Humanitarian Law Project. Fertig and others say they want to try to guide foreign organizations that use terrorism to advance their goals to tun instead to lawful advocacy and peaceful dispute resolution.
Both the Bush and Obama administrations have made the “material support” law the go-to legal weapon against suspected members or supporters of al Qaeda. The court’s 6-3 decision in Holder v. Humanitarian Law Project (June 21) allows the government as well to prosecute human rights-minded Americans for activities that would seem to be both laudable and constitutionally protected.
For the majority, Chief Justice John G. Roberts Jr. accepted the government’s different view that any “training” or “advice or assistance” to a foreign terrorist organization — even for lawful ends — is “highly likely” to inure ultimately to the benefit of its terrorist activities. Congress and the executive branch were “uniquely positioned” to make that judgment, Roberts wrote. Dissenting justices argued that the court had a more important role: to protect the First Amendment.
Up until this week, the government had fared badly in playing the anti-terrorism card at the Supreme Court. In four post-9/11 cases decided between 2004 and 2008, the justices rejected the Bush administration’s claims of broad authority to detain suspected enemy combatants with limited review by the courts.
The government fared badly as well in the lower courts in defending the broad reading of the material support law. As originally enacted in 1996, the law was aimed at prohibiting the most concrete forms of aid to terrorist groups: direct financial assistance, lodging, equipment, personnel, or training. Congress substantially expanded the provision late in October 2001 — barely six weeks after the 9/11 attacks — to prohibit “expert advice or assistance” as well. That was one of the many provisions of the USA Patriot Act that got only the most cursory consideration from Congress in the post-9/11 panic.
The challenge to the law was advancing even as Congress was expanding it. A few weeks before passage of the USA Patriot Act, U.S. District Court Judge Audrey Collins issued a final ruling reaffirming her earlier decision that the law’s prohibitions against providing personnel or training were “impermissibly vague.” Later, in 2003, Fertig’s group filed a second suit challenging the “expert advice or assistance” provision. The proceedings clearly indicated trouble for the government in defending the law as written, prompting Congress late in 2004 to narrow the definition of “training” and “expert advice or assistance.” Lawmakers also added a requirement — as the Ninth Circuit appeals court had ruled necessary — that prosecutors show that a defendant had knowingly provided aid to the terrorist group.
In his opinion, Roberts cited the legislative refinements as evidence that Congress had been careful not to cross the First Amendment line. In dissent, Justice Stephen G. Breyer proposed going one step further and requiring the government to prove that a defendant knew that any training, advice, or assistance was likely to further the organization’s terrorist actions, not its lawful activities. Roberts said Congress "plainly" decided not to require that kind of specific-intent proof.
Hawkish national security experts are hailing the ruling. “Terrorist organizations must be treated as pariahs and suffocated, not cultivated,” former federal prosecutor National Review legal editor Andrew McCarthy writes on a New York Times blog. From the opposite perspective, Stephen Vladeck, a law professor at American University in Washington, warns the decision will have “a profound chilling effect on the efforts of peace-building organizations and other NGOs that seek to promote non-violent democracy building.”
Much depends on whether the Justice Department makes judicious use of the law now that the high court has removed the cloud over it. In oral argument back in February, Solicitor General Elena Kagan expressly declined to speculate whether activists such as Fertig had real reason to fear prosecution under the law.
Writing in a different case earlier this year, Roberts was unwilling to trust the government’s good faith alone on sensitive First Amendment questions. “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly,” Roberts wrote in striking down a broadly written animal cruelty statute in United States v. Stevens. In the new ruling, however, the Roberts Court is willing to put the First Amendment at some risk, trusting assurance from a government that since 9/11 has proved none too trustworthy on national security matters.
Wednesday, June 23, 2010
Friday, June 18, 2010
Roberts Court's Activist Impulse in Beachfront Case
Judged by the result, the decision looks like a model of judicial restraint. The Supreme Court unanimously rejected a claim by landowners on Florida’s northern Gulf Coast that they had suffered an unconstitutional taking of property after beach restoration by local governments turned their oceanfront homes into ocean-view lots separated from the water by 75 feet of new sand.
Looked at more closely, however, the court’s June 17 decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection discloses an activist impulse by the Roberts Court’s committed conservatives. In a plurality opinion, four justices fell one vote short of a majority to give federal courts new power to superintend state court rulings on land- use law. The ruling they sought could have led to a vast increase in property rights litigation, giving property owners new leverage to block government-backed development and improvements aimed at benefiting the broad public.
The decision came as liberal groups are stepping up their accusations that under Chief Justice John G. Roberts Jr., the court has been guilty of pro-business judicial activism. “The Roberts Court consistently pursues a political agenda that favors powerful corporate interests,” according to a report by the Alliance for Justice, “and recent Supreme Court decisions show certain Justices’ striking willingness to engage in judicial activism to fulfill their ideological goals.”
Exhibit No. 1 in the group’s indictment is the 5-4 Citizens United decision in January, which freed corporations (and unions) to spend unlimited sums from their own treasuries on political campaigns. But the report pointed to a dozen other cases in which the court purportedly “overreached” by deciding questions unnecessarily, crafting new legal standards “out of thin air,” or overriding factual determinations by lower courts.
As another example, the group cited the 2009 decision, Gross v. FBL Services, that went beyond the narrow question presented to shift the burden of proof from employers to plaintiffs in one type of federal age- discrimination case. As the report notes, the logic of the decision could also apply to the broad range of job- discrimination suits (race, sex, and so forth) brought under the Civil Rights Act of 1964.
The conservative Heritage Foundation rushed out with a report depicting the liberals’ accusation as “mythology.” The attack, senior fellows Robert Alt and Hans von Spakovsky argue in a legal memorandum, is an effort to distract court watchers from the true record of judicial activism by liberal judges.
The court’s handling of the Florida property rights case gives the warring ideological groups one more decision to debate. The case stemmed from the plan by the Gulf Coast town of Destin and its county government in 2003 to restore about seven miles of hurricane-eroded beach. Some beachfront property owners objected. Why? Because under well-established law, the restored beach would be public land, not private property.
Having paid a pretty penny for an oceanfront lot with no beachgoing public between them and the water, the owners concluded that the government was taking their property without compensation in violation of the Fifth Amendment’s Takings Clause. They also claimed the benefit of Florida’s 1961 Beach and Shore Preservation Act, which generally provides that beachfront owners, post-restoration, are still entitled to almost all of their pre-existing property rights.
The Florida Supreme Court rejected the owners’ claim, saying the owners had lost no protected property right. The owners took the case to the U.S. Supreme Court. There, they argued the novel theory that the state court’s decision on this somewhat close legal question amounted to a taking because it purportedly changed existing state law.
The Supreme Court agreed to review the decision. During arguments in December, justices across the ideological spectrum appeared satisfied that the Florida Supreme Court had a sound basis for its decision. And that is what they said in the eventual ruling. All eight justices (Justice John Paul Stevens, a Florida land owner, recused himself) agreed that the state court was not guilty of taking the owners’ property.
Before reaching that conclusion, however, Justice Antonin Scalia led a four-justice bloc that also included Roberts, Clarence Thomas, and Samuel A. Alito Jr. in saying that, yes, a court ruling changing an “established” property right could amount to a taking just as much as action by a legislative or executive body. The four other justices — Anthony M. Kennedy and Sonia Sotomayor in one opinion, Stephen G. Breyer and Ruth Bader Ginsburg in another — said it was unnecessary to decide the issue. In his opinion, Kennedy warned that the plurality opinion could transform virtually any state court property rights dispute into a “takings” claim. Any losing party, he suggested, could argue that the state court had “changed” established law to its detriment.
In fact, within hours Ilya Shapiro of the libertarian Cato Institute Shapiro was hailing the four-vote opinion. “State courts are now on notice that they violate long-hailed property rights at their peril,” Shapiro wrote. Four votes, of course, do not make a majority on the Supreme Court. A full court almost certainly would have rejected Scalia’s position since Stevens has not embraced property rights claims in past cases. So Scalia’s opinion adopting the idea of “judicial takings” represents an extended dictum of no real legal effect, unnecessary to the decision but an activist gift to property rights advocates in future cases.
Looked at more closely, however, the court’s June 17 decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection discloses an activist impulse by the Roberts Court’s committed conservatives. In a plurality opinion, four justices fell one vote short of a majority to give federal courts new power to superintend state court rulings on land- use law. The ruling they sought could have led to a vast increase in property rights litigation, giving property owners new leverage to block government-backed development and improvements aimed at benefiting the broad public.
The decision came as liberal groups are stepping up their accusations that under Chief Justice John G. Roberts Jr., the court has been guilty of pro-business judicial activism. “The Roberts Court consistently pursues a political agenda that favors powerful corporate interests,” according to a report by the Alliance for Justice, “and recent Supreme Court decisions show certain Justices’ striking willingness to engage in judicial activism to fulfill their ideological goals.”
Exhibit No. 1 in the group’s indictment is the 5-4 Citizens United decision in January, which freed corporations (and unions) to spend unlimited sums from their own treasuries on political campaigns. But the report pointed to a dozen other cases in which the court purportedly “overreached” by deciding questions unnecessarily, crafting new legal standards “out of thin air,” or overriding factual determinations by lower courts.
As another example, the group cited the 2009 decision, Gross v. FBL Services, that went beyond the narrow question presented to shift the burden of proof from employers to plaintiffs in one type of federal age- discrimination case. As the report notes, the logic of the decision could also apply to the broad range of job- discrimination suits (race, sex, and so forth) brought under the Civil Rights Act of 1964.
The conservative Heritage Foundation rushed out with a report depicting the liberals’ accusation as “mythology.” The attack, senior fellows Robert Alt and Hans von Spakovsky argue in a legal memorandum, is an effort to distract court watchers from the true record of judicial activism by liberal judges.
The court’s handling of the Florida property rights case gives the warring ideological groups one more decision to debate. The case stemmed from the plan by the Gulf Coast town of Destin and its county government in 2003 to restore about seven miles of hurricane-eroded beach. Some beachfront property owners objected. Why? Because under well-established law, the restored beach would be public land, not private property.
Having paid a pretty penny for an oceanfront lot with no beachgoing public between them and the water, the owners concluded that the government was taking their property without compensation in violation of the Fifth Amendment’s Takings Clause. They also claimed the benefit of Florida’s 1961 Beach and Shore Preservation Act, which generally provides that beachfront owners, post-restoration, are still entitled to almost all of their pre-existing property rights.
The Florida Supreme Court rejected the owners’ claim, saying the owners had lost no protected property right. The owners took the case to the U.S. Supreme Court. There, they argued the novel theory that the state court’s decision on this somewhat close legal question amounted to a taking because it purportedly changed existing state law.
The Supreme Court agreed to review the decision. During arguments in December, justices across the ideological spectrum appeared satisfied that the Florida Supreme Court had a sound basis for its decision. And that is what they said in the eventual ruling. All eight justices (Justice John Paul Stevens, a Florida land owner, recused himself) agreed that the state court was not guilty of taking the owners’ property.
Before reaching that conclusion, however, Justice Antonin Scalia led a four-justice bloc that also included Roberts, Clarence Thomas, and Samuel A. Alito Jr. in saying that, yes, a court ruling changing an “established” property right could amount to a taking just as much as action by a legislative or executive body. The four other justices — Anthony M. Kennedy and Sonia Sotomayor in one opinion, Stephen G. Breyer and Ruth Bader Ginsburg in another — said it was unnecessary to decide the issue. In his opinion, Kennedy warned that the plurality opinion could transform virtually any state court property rights dispute into a “takings” claim. Any losing party, he suggested, could argue that the state court had “changed” established law to its detriment.
In fact, within hours Ilya Shapiro of the libertarian Cato Institute Shapiro was hailing the four-vote opinion. “State courts are now on notice that they violate long-hailed property rights at their peril,” Shapiro wrote. Four votes, of course, do not make a majority on the Supreme Court. A full court almost certainly would have rejected Scalia’s position since Stevens has not embraced property rights claims in past cases. So Scalia’s opinion adopting the idea of “judicial takings” represents an extended dictum of no real legal effect, unnecessary to the decision but an activist gift to property rights advocates in future cases.
Wednesday, June 9, 2010
When Was It Time to Throw the Book at BP?
Terrance Graham was a two-time juvenile offender, barely past his 19th birthday in 2006, when Judge Lance Day in Jacksonville, Fla., decided to send him to prison for the rest of his life “to protect the community.” Imagine what harms might have been prevented if the repeat corporate offender BP had come up before a likeminded judge sometime in the past.
The cause of the April 20 blowout of BP’s Deepwater Horizon well in the Gulf of Mexico remains to be determined. So, too, the full extent of the economic, environmental, legal, and social costs of what is already the worst oil spill in U.S. history, a spill unlikely to be contained for at least two months, if then.
Seven weeks later, however, this much is known: BP has a long history of safety and environmental violations that can be blamed for the deaths of 15 refinery workers in Texas, the spoilage of Alaska’s North Shore, and lesser injuries to workers and environments at other sites.
The company has twice pleaded guilty to federal criminal charges. It was put on probation after the Texas refinery explosion in March 2005. Four years later, the Occupational Safety and Health Administration (OSHA) hit the company with a record $87 million fine for failing to correct the problems.
In all, BP has paid or has pending over $730 million in fines, penalties, or settlements to federal, state, or local governments in recent years for environmental, worker safety, or price manipulation violations, according to a report by the consumer protection group Public Citizen.
BP’s record of lawbreaking was no secret, but it was not well known. The March 2005 explosion at BP’s 1,200-acre oil refinery in Texas City, just outside Houston, killed 15 workers and injured some 170 others. But the accident was not front-page news outside Texas. Nor were the later investigations that found “significant process issues” at all five of BP’s refineries in the United States.
In like vein, the 200,000-gallon oil spill from a BP pipeline on Alaska’s North Slope in March 2006 made front-page news in Alaska, but not the rest of the country. The spill, the largest ever on the North Slope, was linked to corrosion in the pipeline. BP had known about the problem at least since 2004, according to later investigations.
In October 2007, the company pleaded guilty to federal crimes for both incidents: a felony violation of the Clean Air Act for the refinery accident, with a $50 million fine; a misdemeanor violation of the Clean Water Act for the oil spill, with $4 million in restitution to the state of Alaska and a $4 million payment to the National Fish and Wildlife Foundation. On the same day, the company agreed to pay $303 million to settle civil charges that it unlawfully manipulated prices in the market for propane. The guilty pleas were seen as an effort at good corporate citizenship by BP’s then-new CEO: Tony Hayward.
After his first arrest — for a botched restaurant robbery — Terrance Graham negotiated a favorable plea agreement and vowed to do better. “I’ve decided to turn my life around,” Graham promised. After the second offense — a home-invasion robbery — an exasperated Judge Day scolded Graham for blowing his second chance. “If I can’t do anything to get you back on the right path,” the judge said, “then I have to start focusing on the community and trying to protect the community from your actions.”
Four and a half years after the Texas City refinery explosion, OSHA concluded last October that BP had failed to make the safety improvements at the facility as promised. The agency proposed fines totaling $87 million. BP said it would contest the penalties. In March, the agency proposed a separate $3 million fine for safety violations at BP’s refinery in Oregon, Ohio, near Toledo.
An analysis of OSHA’s data base by the Center for Public Integrity, the Washington-based journalistic watchdog group, found BP far and away the worst safety offender among U.S. refineries. BP was responsible for 829 “willful” violations from the period June 2007-February 2010, the center said; the total for all other refineries: 22.
Now, internal documents obtained by Pro Publica, the nonprofit investigative journalism group, purportedly detail the company’s disregard of safety and environmental problems in the past. The documents — leaked by someone “close to the company” but critical of its performance — depict a corporate environment in which employees were pressured to cut corners and to keep any safety concerns to themselves.
Terrance Graham will get a new sentence after the U.S. Supreme Court ruled on May 17 that life without parole is cruel and unusual punishment for a juvenile offender. But Florida Attorney General Bill McCollum is promising that Graham will still serve “a very long term in prison.” Meanwhile, U.S. Attorney General Eric Holder says the Justice Department has opened a criminal investigation of BP in the wake of the Gulf spill. “We will prosecute to the fullest extent of the law anyone who has violated the law,” Holder said.
* * *
The cause of the April 20 blowout of BP’s Deepwater Horizon well in the Gulf of Mexico remains to be determined. So, too, the full extent of the economic, environmental, legal, and social costs of what is already the worst oil spill in U.S. history, a spill unlikely to be contained for at least two months, if then.
Seven weeks later, however, this much is known: BP has a long history of safety and environmental violations that can be blamed for the deaths of 15 refinery workers in Texas, the spoilage of Alaska’s North Shore, and lesser injuries to workers and environments at other sites.
The company has twice pleaded guilty to federal criminal charges. It was put on probation after the Texas refinery explosion in March 2005. Four years later, the Occupational Safety and Health Administration (OSHA) hit the company with a record $87 million fine for failing to correct the problems.
In all, BP has paid or has pending over $730 million in fines, penalties, or settlements to federal, state, or local governments in recent years for environmental, worker safety, or price manipulation violations, according to a report by the consumer protection group Public Citizen.
BP’s record of lawbreaking was no secret, but it was not well known. The March 2005 explosion at BP’s 1,200-acre oil refinery in Texas City, just outside Houston, killed 15 workers and injured some 170 others. But the accident was not front-page news outside Texas. Nor were the later investigations that found “significant process issues” at all five of BP’s refineries in the United States.
In like vein, the 200,000-gallon oil spill from a BP pipeline on Alaska’s North Slope in March 2006 made front-page news in Alaska, but not the rest of the country. The spill, the largest ever on the North Slope, was linked to corrosion in the pipeline. BP had known about the problem at least since 2004, according to later investigations.
In October 2007, the company pleaded guilty to federal crimes for both incidents: a felony violation of the Clean Air Act for the refinery accident, with a $50 million fine; a misdemeanor violation of the Clean Water Act for the oil spill, with $4 million in restitution to the state of Alaska and a $4 million payment to the National Fish and Wildlife Foundation. On the same day, the company agreed to pay $303 million to settle civil charges that it unlawfully manipulated prices in the market for propane. The guilty pleas were seen as an effort at good corporate citizenship by BP’s then-new CEO: Tony Hayward.
* * *
After his first arrest — for a botched restaurant robbery — Terrance Graham negotiated a favorable plea agreement and vowed to do better. “I’ve decided to turn my life around,” Graham promised. After the second offense — a home-invasion robbery — an exasperated Judge Day scolded Graham for blowing his second chance. “If I can’t do anything to get you back on the right path,” the judge said, “then I have to start focusing on the community and trying to protect the community from your actions.”
* * *
Four and a half years after the Texas City refinery explosion, OSHA concluded last October that BP had failed to make the safety improvements at the facility as promised. The agency proposed fines totaling $87 million. BP said it would contest the penalties. In March, the agency proposed a separate $3 million fine for safety violations at BP’s refinery in Oregon, Ohio, near Toledo.
An analysis of OSHA’s data base by the Center for Public Integrity, the Washington-based journalistic watchdog group, found BP far and away the worst safety offender among U.S. refineries. BP was responsible for 829 “willful” violations from the period June 2007-February 2010, the center said; the total for all other refineries: 22.
Now, internal documents obtained by Pro Publica, the nonprofit investigative journalism group, purportedly detail the company’s disregard of safety and environmental problems in the past. The documents — leaked by someone “close to the company” but critical of its performance — depict a corporate environment in which employees were pressured to cut corners and to keep any safety concerns to themselves.
* * *
Terrance Graham will get a new sentence after the U.S. Supreme Court ruled on May 17 that life without parole is cruel and unusual punishment for a juvenile offender. But Florida Attorney General Bill McCollum is promising that Graham will still serve “a very long term in prison.” Meanwhile, U.S. Attorney General Eric Holder says the Justice Department has opened a criminal investigation of BP in the wake of the Gulf spill. “We will prosecute to the fullest extent of the law anyone who has violated the law,” Holder said.
Wednesday, June 2, 2010
Supreme Court’s ‘Law and Order’ Exception to Miranda Rule
“Law and Order” may have ended its 20-year run, but Briscoe, Curtis, and all the other cops and prosecutors on the compelling TV series can rest content after a Supreme Court decision on Tuesday [June 1] that eases the rule on police interrogation established in the landmark Miranda case. By a 5-4 vote, the justices gave the green light to the kind of subtle coercion that “Law and Order” detectives still practice in nightly reruns and that Miranda had sought to prevent.
Like many of the perps on “Law and Order,” Van Chester Thompkins had nothing to say while two detectives from Southfield, Michigan, questioned him on Feb. 22, 2001, about a drive-by shooting outside a strip mall a year earlier. In Thompkin’s case, he sat on a hard chair in an eight-foot by ten-foot interrogation room for three hours — long enough for three episodes — after refusing to sign a waiver of his Miranda right to remain silent.
For two hours and 45 minutes, Thompkins said nothing more substantial than to complain about the chair and to decline Detective Christopher Helgert’s offer of a mint. In the real world, one would see that Thompkins did not want to talk. But, at the cop house, a different rule applies. Helgert kept up his monologue and finally figured out Thompkins’ weak spot. “Do you believe in God?” he asked. Thompkins said yes. “Do you pray?” Again, Thompkins said yes. “Do you pray to God to forgive you for shooting that boy down?” Helgert asked. Tearing up, Thompkins answered in one word: “Yes.”
As a district attorney in California in the 1930s, Earl Warren had experience with old-style police interrogations: slapping suspects around and the like. As chief justice, he learned that police had adopted other techniques. “The modern practice of in-custody interrogation is psychologically, rather than physically, oriented,” Warren wrote in the 1966 Miranda decision. Police manuals, Warren explained, tell officers to isolate the suspect, display confidence, assume the suspect’s guilt, and get him simply to elaborate on what the police pretend already to know.
The Supreme Court created the Miranda rule to combat what Warren aptly described as the inherently coercive nature of that kind of interrogation. Everyone is now familiar with the recitation of Miranda rights: the right to remain silent, the right to cut off questioning, the right to have a lawyer, and the right to have the lawyer present during interrogation. To safeguard those rights, the court said that police cannot use a suspect’s statement unless they show that a suspect knowingly and intelligently waived those rights. And a valid waiver could not be shown, the court said, simply by the fact that a confession was in fact obtained.
In Thompkins’ case, Michigan courts drove right by those waiver rules. Thompkins’ statement was introduced and, in a close case, helped the prosecution get a conviction. On appeal, the Michigan courts said, counterintuitively, that Thompkins had to speak up in order to assert his right to remain silent. And, in seeming contradiction, the state courts said that Thompkins had waived that right with three one-word answers uttered after nearly three hours of interrogation.
The Supreme Court agreed. “The record in this case shows that Thompkins waived his right to remain silent,” Justice Anthony M. Kennedy wrote for the Roberts Court’s conservative majority in Berghuis v. Thompkins. The suspect’s one-word answer about praying, Kennedy continued, “was sufficient to show a course of conduct indicating waiver.” True, Kennedy conceded, Thompkins sat in a straight-backed chair for three hours, but — overlooking Miranda — the justice said there is “no authority” for the proposition that an interrogation under these circumstances is “inherently coercive.”
For the four liberal dissenters, Justice Sonia Sotomayor, a former local prosecutor, labeled the decision “a substantial retreat from the protection against compelled self-incrimination” established by Miranda. That decision places a “heavy burden” on the prosecution to show that a suspect has waived the right to remain silent, she explained, and it was “objectively unreasonable” to conclude that the prosecution had shown a waiver in Thompkins’ case on the basis of “three one-word answers, following 2 hours and 45 minutes of silence . . . .”
Sotomayor also criticized the court’s new rule that a suspect must make a “clear statement” in order to assert a right to remain silent. “Advising a suspect that he has a ‘right to remain silent’ is unlikely to convey that he must speak (and must do so in some particular fashion) to ensure the right will be protected,” she wrote.
For the majority, Kennedy suggested that the “clear statement” rule would not affect many cases. In a footnote, however, Sotomayor listed a raft of lower court decisions holding that suspects had not invoked a right to silence despite “an array of statements whose meaning might otherwise be thought plain.” Like the suspect who said, “I just don’t think I should say anything,” but his later statements admitted anyway.
The new decision is not the first retreat from Miranda— and is unlikely to be the last. Yes, Miranda is still good law. But two decades of “Law and Order” show that fictional police know how to work around it. And the Roberts Court is OK with that in real life.
Like many of the perps on “Law and Order,” Van Chester Thompkins had nothing to say while two detectives from Southfield, Michigan, questioned him on Feb. 22, 2001, about a drive-by shooting outside a strip mall a year earlier. In Thompkin’s case, he sat on a hard chair in an eight-foot by ten-foot interrogation room for three hours — long enough for three episodes — after refusing to sign a waiver of his Miranda right to remain silent.
For two hours and 45 minutes, Thompkins said nothing more substantial than to complain about the chair and to decline Detective Christopher Helgert’s offer of a mint. In the real world, one would see that Thompkins did not want to talk. But, at the cop house, a different rule applies. Helgert kept up his monologue and finally figured out Thompkins’ weak spot. “Do you believe in God?” he asked. Thompkins said yes. “Do you pray?” Again, Thompkins said yes. “Do you pray to God to forgive you for shooting that boy down?” Helgert asked. Tearing up, Thompkins answered in one word: “Yes.”
As a district attorney in California in the 1930s, Earl Warren had experience with old-style police interrogations: slapping suspects around and the like. As chief justice, he learned that police had adopted other techniques. “The modern practice of in-custody interrogation is psychologically, rather than physically, oriented,” Warren wrote in the 1966 Miranda decision. Police manuals, Warren explained, tell officers to isolate the suspect, display confidence, assume the suspect’s guilt, and get him simply to elaborate on what the police pretend already to know.
The Supreme Court created the Miranda rule to combat what Warren aptly described as the inherently coercive nature of that kind of interrogation. Everyone is now familiar with the recitation of Miranda rights: the right to remain silent, the right to cut off questioning, the right to have a lawyer, and the right to have the lawyer present during interrogation. To safeguard those rights, the court said that police cannot use a suspect’s statement unless they show that a suspect knowingly and intelligently waived those rights. And a valid waiver could not be shown, the court said, simply by the fact that a confession was in fact obtained.
In Thompkins’ case, Michigan courts drove right by those waiver rules. Thompkins’ statement was introduced and, in a close case, helped the prosecution get a conviction. On appeal, the Michigan courts said, counterintuitively, that Thompkins had to speak up in order to assert his right to remain silent. And, in seeming contradiction, the state courts said that Thompkins had waived that right with three one-word answers uttered after nearly three hours of interrogation.
The Supreme Court agreed. “The record in this case shows that Thompkins waived his right to remain silent,” Justice Anthony M. Kennedy wrote for the Roberts Court’s conservative majority in Berghuis v. Thompkins. The suspect’s one-word answer about praying, Kennedy continued, “was sufficient to show a course of conduct indicating waiver.” True, Kennedy conceded, Thompkins sat in a straight-backed chair for three hours, but — overlooking Miranda — the justice said there is “no authority” for the proposition that an interrogation under these circumstances is “inherently coercive.”
For the four liberal dissenters, Justice Sonia Sotomayor, a former local prosecutor, labeled the decision “a substantial retreat from the protection against compelled self-incrimination” established by Miranda. That decision places a “heavy burden” on the prosecution to show that a suspect has waived the right to remain silent, she explained, and it was “objectively unreasonable” to conclude that the prosecution had shown a waiver in Thompkins’ case on the basis of “three one-word answers, following 2 hours and 45 minutes of silence . . . .”
Sotomayor also criticized the court’s new rule that a suspect must make a “clear statement” in order to assert a right to remain silent. “Advising a suspect that he has a ‘right to remain silent’ is unlikely to convey that he must speak (and must do so in some particular fashion) to ensure the right will be protected,” she wrote.
For the majority, Kennedy suggested that the “clear statement” rule would not affect many cases. In a footnote, however, Sotomayor listed a raft of lower court decisions holding that suspects had not invoked a right to silence despite “an array of statements whose meaning might otherwise be thought plain.” Like the suspect who said, “I just don’t think I should say anything,” but his later statements admitted anyway.
The new decision is not the first retreat from Miranda— and is unlikely to be the last. Yes, Miranda is still good law. But two decades of “Law and Order” show that fictional police know how to work around it. And the Roberts Court is OK with that in real life.
Monday, May 17, 2010
Gay Married Couples Pressing U.S. for 'Equal' Rights
Keith Toney got a new passport last summer. Usually, no big deal. But Keith had to join a federal court lawsuit before the State Department agreed to issue a passport in his legal name.
The problem? Keith took the surname of his longtime partner Al Toney after they were married in Massachusetts in March 2004. Keith had no problems changing his driver’s license, credit cards, and so forth. But when he tried to renew his passport in 2005, the State Department told him that the Defense of Marriage Act (DOMA) — which prohibits any federal recognition of same-sex marriages — prevented it from issuing a passport in his legally recognized marital name.
Over the next four years, Keith managed as best he could when he and Al traveled to Costa Rica, where they own property. He got used to carrying his marriage license and a news article with him to help explain — sometimes across the Spanish-English language barrier — why his passport bore a different name from the rest of his identification. But he never got used to the fact that the government was forcing him to carry a document that no longer represented his real identity. “It was an insult,” he recalls today.
To put their anger to good use, Keith and Al signed on to the legal attack on DOMA that was tried earlier this month (May 6) before a federal judge in Boston. Along with other same-sex couples all legally married in Massachusetts, the Toneys argued that the federal government is violating the Constitution’s Equal Protection Clause by denying them the same privileges and benefits that it extends to other legally married couples in the Bay State and everywhere else in the country.
The State Department finally relented last year by agreeing to accept Keith’s marriage license as evidence of a change of name — one of several gay-friendly actions taken under Secretary of State Hillary Rodham Clinton. After five years, the department even waived the usual name-change fee and delivered the new passport within two days of a specially arranged interview.
The other plaintiffs in the case, Gill v. Office of Personnel Management, are not so lucky. Their complaints about the second-class status of their marriages are unanswered, at least, not yet. But attorneys for Gay and Lesbian Advocates and Defenders (GLAD), the Boston-based legal center that filed the suit, were professing cautious optimism after the 90-minute hearing before Senior U.S. District Court Judge Joseph Tauro.
For his part, Justice Department attorney Scott Simpson was in the awkward position of defending a law that the Obama administration says it wants to repeal. “This presidential administration disagrees with DOMA as a matter of policy,” Simpson said, according to news accounts of the hearing. “But that does not affect its constitutionality.”
As with Keith Toney’s problem, the stakes in the case for the 17 remaining plaintiffs _ seven couples and three men whose husbands died _ sound more like the product of bureaucratic snafus than the stuff of constitutional litigation. Lead plaintiff Nancy Gill has worked for the U.S. Postal Service for more than 20 years, but cannot provide the same benefits to her spouse, Marcelle Letourneau, that other married workers provide to theirs. Other couples cannot file joint federal income tax returns. The three “widowers” — including Dean Hara, husband of the late congressman, Gerry Studds — have been denied Social Security survivor benefits.
Congress passed DOMA in 1996 in an effort to thwart any progress toward gay marriage in the states. The House committee report on the bill said its purpose was to “express moral disapproval of homosexuality.” One section provides that no state is obliged to recognize same-sex marriages recognized in another state. The Massachusetts plaintiffs are challenging a second provision that defines marriage for federal law purposes as between one man and one woman.
In defending the law today, the Obama administration has expressly disavowed many of the lawmakers’ motives behind its enactment. Whatever the political reasons, the concession may also be sound legal strategy. The Supreme Court’s 1996 decision striking down an anti-gay initiative in Colorado, Romer v. Evans, held that anti-gay animus cannot be used to justify a law, even under the most relaxed constitutional scrutiny.
Instead, the government now argues the law preserves the status quo while states debate marriage rights for gays and lesbians. In court, GLAD attorney Mary Bonauto answered that the law actually “upended” the status quo by superseding the states’ traditional prerogative to define marriage.
Tauro encouraged the plaintiffs’ side by vigorously challenging Simpson on the point. “When did it become a federal matter — the definition of marriage?” Tauro asked. Massachusetts will be making a similar federalism-style argument later this month (May 26) in its separate legal action to strike down the law.
Tauro gave no indication when he will rule, but the Toneys — who watched the hearing along with the other plaintiffs from the jury box in Tauro’s courtroom — were optimistic afterward. “The judge was very respectful,” said Keith “We personally feel it went very well.”
“We’re hopeful people anyway,” Al added. “It would be kind of sad to go through life not being hopeful. The other way is pretty grim.”
The problem? Keith took the surname of his longtime partner Al Toney after they were married in Massachusetts in March 2004. Keith had no problems changing his driver’s license, credit cards, and so forth. But when he tried to renew his passport in 2005, the State Department told him that the Defense of Marriage Act (DOMA) — which prohibits any federal recognition of same-sex marriages — prevented it from issuing a passport in his legally recognized marital name.
Over the next four years, Keith managed as best he could when he and Al traveled to Costa Rica, where they own property. He got used to carrying his marriage license and a news article with him to help explain — sometimes across the Spanish-English language barrier — why his passport bore a different name from the rest of his identification. But he never got used to the fact that the government was forcing him to carry a document that no longer represented his real identity. “It was an insult,” he recalls today.
To put their anger to good use, Keith and Al signed on to the legal attack on DOMA that was tried earlier this month (May 6) before a federal judge in Boston. Along with other same-sex couples all legally married in Massachusetts, the Toneys argued that the federal government is violating the Constitution’s Equal Protection Clause by denying them the same privileges and benefits that it extends to other legally married couples in the Bay State and everywhere else in the country.
The State Department finally relented last year by agreeing to accept Keith’s marriage license as evidence of a change of name — one of several gay-friendly actions taken under Secretary of State Hillary Rodham Clinton. After five years, the department even waived the usual name-change fee and delivered the new passport within two days of a specially arranged interview.
The other plaintiffs in the case, Gill v. Office of Personnel Management, are not so lucky. Their complaints about the second-class status of their marriages are unanswered, at least, not yet. But attorneys for Gay and Lesbian Advocates and Defenders (GLAD), the Boston-based legal center that filed the suit, were professing cautious optimism after the 90-minute hearing before Senior U.S. District Court Judge Joseph Tauro.
For his part, Justice Department attorney Scott Simpson was in the awkward position of defending a law that the Obama administration says it wants to repeal. “This presidential administration disagrees with DOMA as a matter of policy,” Simpson said, according to news accounts of the hearing. “But that does not affect its constitutionality.”
As with Keith Toney’s problem, the stakes in the case for the 17 remaining plaintiffs _ seven couples and three men whose husbands died _ sound more like the product of bureaucratic snafus than the stuff of constitutional litigation. Lead plaintiff Nancy Gill has worked for the U.S. Postal Service for more than 20 years, but cannot provide the same benefits to her spouse, Marcelle Letourneau, that other married workers provide to theirs. Other couples cannot file joint federal income tax returns. The three “widowers” — including Dean Hara, husband of the late congressman, Gerry Studds — have been denied Social Security survivor benefits.
Congress passed DOMA in 1996 in an effort to thwart any progress toward gay marriage in the states. The House committee report on the bill said its purpose was to “express moral disapproval of homosexuality.” One section provides that no state is obliged to recognize same-sex marriages recognized in another state. The Massachusetts plaintiffs are challenging a second provision that defines marriage for federal law purposes as between one man and one woman.
In defending the law today, the Obama administration has expressly disavowed many of the lawmakers’ motives behind its enactment. Whatever the political reasons, the concession may also be sound legal strategy. The Supreme Court’s 1996 decision striking down an anti-gay initiative in Colorado, Romer v. Evans, held that anti-gay animus cannot be used to justify a law, even under the most relaxed constitutional scrutiny.
Instead, the government now argues the law preserves the status quo while states debate marriage rights for gays and lesbians. In court, GLAD attorney Mary Bonauto answered that the law actually “upended” the status quo by superseding the states’ traditional prerogative to define marriage.
Tauro encouraged the plaintiffs’ side by vigorously challenging Simpson on the point. “When did it become a federal matter — the definition of marriage?” Tauro asked. Massachusetts will be making a similar federalism-style argument later this month (May 26) in its separate legal action to strike down the law.
Tauro gave no indication when he will rule, but the Toneys — who watched the hearing along with the other plaintiffs from the jury box in Tauro’s courtroom — were optimistic afterward. “The judge was very respectful,” said Keith “We personally feel it went very well.”
“We’re hopeful people anyway,” Al added. “It would be kind of sad to go through life not being hopeful. The other way is pretty grim.”
Monday, May 10, 2010
Kagan's Confirmation Likely, Future Path Unclear
Elena Kagan appears on a path toward Senate confirmation as the next Supreme Court justice, but her ability to move the court in the direction that President Obama hopes for remains to be seen. Indeed, her first effort in that regard failed.
In announcing his selection today (May 10), Obama stressed along with Kagan’s academic credentials (Princeton, Oxford, Harvard) her reputation as a consensus-builder in six years as dean of Harvard Law School. Obama specifically pointed to Kagan’s role in hiring conservative scholars for the school’s ideologically fractious faculty as evidence of a judicial temperament open to diverse points of view.
Liberal advocacy groups have been pinning their hopes on Kagan as the silver bullet for pulling Justice Anthony M. Kennedy more often toward the four-justice liberal bloc and away from the bloc of four conservatives headed by Chief Justice John G. Roberts Jr. But as U.S. solicitor general, she ended on the losing side of the Court’s 5-4 decision in January striking down a major provision of the McCain-Feingold campaign finance law and freeing corporations and unions to spend unlimited sums on congressional or presidential elections.
Obama referred to the case, Citizens United v. Federal Election Commission, in his remarks, noting that Kagan took on the case as her debut before the Court last September despite the odds against the conservative majority’s upholding the law. But, echoing his earlier comments on the retirement of Justice John Paul Stevens, Obama said that Kagan understood that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Kagan had been regarded as the presumptive front-runner for the vacancy ever since last fall, when Stevens signaled his likely retirement by hiring only one law clerk for the coming term instead of the normal complement of four for a sitting justice. In his remarks, Obama indicated he was drawn to Kagan’s life story: immigrant grandparents; her father a housing lawyer, her mother a public school teacher. He noted as well her firsts as a “trailblazing leader” — first female dean at Harvard Law School and now the first woman to serve as solicitor general.
In her academic career, Kagan produced only a limited paper trail: several law review articles on First Amendment issues, a pair on presidential power, and a few book reviews and speeches. They give conservative critics little ammunition for opposing her, but likewise leave liberal advocacy groups with only limited clues about Kagan’s stands on specific legal issues. In her longest academic writing, she dissected the Court’s free speech cases at length but offered no overarching theory of her own.
If confirmed, Kagan will come to the Court after service in all three branches of the federal government. She was law clerk to federal appeals court judge Abner Mikva and later to Supreme Court Justice Thurgood Marshall, both liberal icons. She served as special counsel to the Senate Judiciary Committee during the 1993 confirmation hearings for Justice Ruth Bader Ginsburg — and later wrote critically about Ginsburg’s evasion of senators’ questions. She then went on to work for Mikva as associate White House counsel during the Clinton administration.
Kagan will lack, however, the experience that the other eight justices have: prior service on a federal appeals court. Some conservatives are pointing to the lack of experience as a detriment. On the other hand, some Court watchers have been yearning for a justice to be selected from outside the judicial monastery. William H. Rehnquist — who served for 19 years as chief justice — and Lewis F. Powell Jr. in 1971 were the last justices to be nominated without prior judicial experience.
If she joins justices Ginsburg and Sonia Sotomayor as the third woman, Kagan would add to gender diversity, but otherwise she will make the Court less representative of the country as a whole. If she is confirmed, all nine justices will have attended either Harvard or Yale law school. (Stevens graduated from Northwestern.) She will be the seventh justice who counts the Boston-Washington corridor as home (all but Kennedy and Clarence Thomas). And Kagan would be the third Jewish justice — and, with six Catholics, leave the Court for the first time ever with no Protestant member.
Kagan’s background marks her as a liberal from her childhood on Manhattan’s Upper West Side through a college thesis on socialism and her campaign work for such Democrats as Rep. Theodore Weiss and 1988 presidential nominee Michael Dukakis. Republican senators looking for vulnerabilities will undoubtedly criticize her decision as Harvard dean to enforce the law school’s policy barring military recruiters on campus to protest the “don’t ask, don’t tell” policy on gays in the military. (She changed the policy after the Supreme Court ruled against law schools by an 8-0 vote.) With that exception, however, Kagan gives potential opponents few easy targets for attack.
Among the four front-runners for the nomination, Kagan was the youngest; she turned 50 last month. She would be the youngest justice to take the bench since Clarence Thomas was appointed at the age of 43 in 1991. (Justice Antonin Scalia took office in 1986, six months past his 50th birthday.) Her relative youth — and the prospect of a 20- to 30-year tenure — was undoubtedly a factor in Obama’s selection. Stevens retires after a 35-year evolution from moderate conservative to liberal leader. With limited evidence, predictions about Kagan’s role should be made and considered with utmost tentativeness.
In announcing his selection today (May 10), Obama stressed along with Kagan’s academic credentials (Princeton, Oxford, Harvard) her reputation as a consensus-builder in six years as dean of Harvard Law School. Obama specifically pointed to Kagan’s role in hiring conservative scholars for the school’s ideologically fractious faculty as evidence of a judicial temperament open to diverse points of view.
Liberal advocacy groups have been pinning their hopes on Kagan as the silver bullet for pulling Justice Anthony M. Kennedy more often toward the four-justice liberal bloc and away from the bloc of four conservatives headed by Chief Justice John G. Roberts Jr. But as U.S. solicitor general, she ended on the losing side of the Court’s 5-4 decision in January striking down a major provision of the McCain-Feingold campaign finance law and freeing corporations and unions to spend unlimited sums on congressional or presidential elections.
Obama referred to the case, Citizens United v. Federal Election Commission, in his remarks, noting that Kagan took on the case as her debut before the Court last September despite the odds against the conservative majority’s upholding the law. But, echoing his earlier comments on the retirement of Justice John Paul Stevens, Obama said that Kagan understood that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Kagan had been regarded as the presumptive front-runner for the vacancy ever since last fall, when Stevens signaled his likely retirement by hiring only one law clerk for the coming term instead of the normal complement of four for a sitting justice. In his remarks, Obama indicated he was drawn to Kagan’s life story: immigrant grandparents; her father a housing lawyer, her mother a public school teacher. He noted as well her firsts as a “trailblazing leader” — first female dean at Harvard Law School and now the first woman to serve as solicitor general.
In her academic career, Kagan produced only a limited paper trail: several law review articles on First Amendment issues, a pair on presidential power, and a few book reviews and speeches. They give conservative critics little ammunition for opposing her, but likewise leave liberal advocacy groups with only limited clues about Kagan’s stands on specific legal issues. In her longest academic writing, she dissected the Court’s free speech cases at length but offered no overarching theory of her own.
If confirmed, Kagan will come to the Court after service in all three branches of the federal government. She was law clerk to federal appeals court judge Abner Mikva and later to Supreme Court Justice Thurgood Marshall, both liberal icons. She served as special counsel to the Senate Judiciary Committee during the 1993 confirmation hearings for Justice Ruth Bader Ginsburg — and later wrote critically about Ginsburg’s evasion of senators’ questions. She then went on to work for Mikva as associate White House counsel during the Clinton administration.
Kagan will lack, however, the experience that the other eight justices have: prior service on a federal appeals court. Some conservatives are pointing to the lack of experience as a detriment. On the other hand, some Court watchers have been yearning for a justice to be selected from outside the judicial monastery. William H. Rehnquist — who served for 19 years as chief justice — and Lewis F. Powell Jr. in 1971 were the last justices to be nominated without prior judicial experience.
If she joins justices Ginsburg and Sonia Sotomayor as the third woman, Kagan would add to gender diversity, but otherwise she will make the Court less representative of the country as a whole. If she is confirmed, all nine justices will have attended either Harvard or Yale law school. (Stevens graduated from Northwestern.) She will be the seventh justice who counts the Boston-Washington corridor as home (all but Kennedy and Clarence Thomas). And Kagan would be the third Jewish justice — and, with six Catholics, leave the Court for the first time ever with no Protestant member.
Kagan’s background marks her as a liberal from her childhood on Manhattan’s Upper West Side through a college thesis on socialism and her campaign work for such Democrats as Rep. Theodore Weiss and 1988 presidential nominee Michael Dukakis. Republican senators looking for vulnerabilities will undoubtedly criticize her decision as Harvard dean to enforce the law school’s policy barring military recruiters on campus to protest the “don’t ask, don’t tell” policy on gays in the military. (She changed the policy after the Supreme Court ruled against law schools by an 8-0 vote.) With that exception, however, Kagan gives potential opponents few easy targets for attack.
Among the four front-runners for the nomination, Kagan was the youngest; she turned 50 last month. She would be the youngest justice to take the bench since Clarence Thomas was appointed at the age of 43 in 1991. (Justice Antonin Scalia took office in 1986, six months past his 50th birthday.) Her relative youth — and the prospect of a 20- to 30-year tenure — was undoubtedly a factor in Obama’s selection. Stevens retires after a 35-year evolution from moderate conservative to liberal leader. With limited evidence, predictions about Kagan’s role should be made and considered with utmost tentativeness.
Monday, May 3, 2010
The Framers' Prayer for Religious Accommodation
Many Americans will gather in Washington and state capitals on Thursday [May 6] to observe the National Day of Prayer. Millions of others will take no notice of this 58-year-old tradition. But some number will take quiet offense that federal and state governments are lending their support to a religious practice in which they conscientiously do not believe.
Those in that relative minority are drawing encouragement from a ruling by a federal judge in Wisconsin last month [April 15] that the annual presidential proclamation of a national day of prayer, pursuant to a 1988 law, is unconstitutional.
The 1988 law, senior U.S. District Court Judge Barbara Crabb wrote in the 66-page ruling, “does not serve any purpose for the government or the country as a whole, but simply facilitates the religious activities of particular religious groups.”
Crabb’s ruling in Freedom From Religion Foundation v. Obama came two weeks before the U.S. Supreme Court turned a blind eye to another arguable violation of the First Amendment’s prohibition against an establishment of religion. By a 5-4 vote, the justices decided that federal courts in California had been wrong to block a congressionally mandated plan aimed at maintaining a lone Christian cross as a World War I memorial on what is now public land within the Mojave National Preserve.
Try as they might, courts cannot escape entanglement in church-state disputes. The reason is simple: religious groups, like other interest groups in this pluralistic democracy, seek to enlist the government’s support for their purposes. And, so, believers — and, in particular, the Christian majorities — press for recognition, support, and tangible assistance from governments at the local, state and national levels.
Courts are called on to police the boundaries that the framers wrote into the Bill of Rights more than two centuries ago. Congress — and later the states — were prohibited from enacting any law “respecting an establishment of religion” or “prohibiting the free exercise thereof.” Together, it was thought, the two religion clauses would safeguard religious freedom in the new republic.
The Free Exercise Clause has served the country well. Most of the free-exercise cases decided by courts have involved laws with incidental impact on religious practices or beliefs. Only rarely have laws been passed specifically aimed at preventing people from practicing their religions as they saw fit.
The Establishment Clause has proven more difficult to apply. The Supreme Court’s first modern-day encounter, in a 1948 decision, adopted the metaphor of a strict “wall of separation between church and state.” But the ruling upheld government-provided bus transportation for parochial school students.
The high court became stricter in policing that wall in the 1960s with the controversial decisions that banned organized prayer or Bible reading in public schools. In 1985, the court — in an opinion by Justice John Paul Stevens — struck down Alabama's “moment of silence” law for schools on the ground that it was explicitly written to encourage prayer in the classroom.
The court became more lenient of government support for religion in several decisions under former Chief Justice William H. Rehnquist that culminated in the 5-4 ruling in 2002 upholding the constitutionality of school vouchers even though they overwhelmingly benefited students in Catholic schools. Now, under Chief Justice John G. Roberts Jr., the trend appears to be continuing.
Roberts helped form the majority in the new decision, Salazar v. Buono, that blinked at the evident sectarian purpose of erecting a Christian cross as a memorial to the fallen servicemen of World War I. The cross, Justice Anthony M. Kennedy wrote in the main opinion, was “not merely a reaffirmation of Christian beliefs,” but also “a symbol” used to “honor and respect” the nation’s heroes. Reading the opinion naturally brought to mind the exchange during oral argument when the plaintiff’s lawyer noted to Justice Antonin Scalia that there are no crosses on Jewish gravestones.
The organizers of the National Day of Prayer appear to be equally blind to the national ideal of religious freedom and religious diversity. The official Web site for the observance repeatedly invokes Jesus’ name and cites almost exclusively to the Christian New Testament. The site pays not even lip service to the notion of a “Judeo-Christian” tradition, much less to the growing number of Americans who practice other religions or none at all.
In the desert cross case, Justice Samuel A. Alito Jr. endorsed Congress’s solution to the supposed dilemma: transfer the land to the Veterans of Foreign Wars so that it could maintain the cross, still designated as a national memorial for the World War I dead. That solution, Alito said, was faithful to “the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.”
In fact, the framers devised a very practical accommodation two centuries ago: freedom for religious practice plus freedom from government-established religion. Contrary to Alito, courts that do not maintain separation between church and state promote neither religious pluralism nor tolerance.
In her ruling, Judge Crabb saw no “accommodation” in the officially proclaimed day of prayer. The law, she said, was “taking sides on a matter of religious belief.” Better, she suggested, would be to celebrate a National Day of Religious Freedom. With or without an official proclamation, that tradition merits celebration and reaffirmation, every day of the year.
Those in that relative minority are drawing encouragement from a ruling by a federal judge in Wisconsin last month [April 15] that the annual presidential proclamation of a national day of prayer, pursuant to a 1988 law, is unconstitutional.
The 1988 law, senior U.S. District Court Judge Barbara Crabb wrote in the 66-page ruling, “does not serve any purpose for the government or the country as a whole, but simply facilitates the religious activities of particular religious groups.”
Crabb’s ruling in Freedom From Religion Foundation v. Obama came two weeks before the U.S. Supreme Court turned a blind eye to another arguable violation of the First Amendment’s prohibition against an establishment of religion. By a 5-4 vote, the justices decided that federal courts in California had been wrong to block a congressionally mandated plan aimed at maintaining a lone Christian cross as a World War I memorial on what is now public land within the Mojave National Preserve.
Try as they might, courts cannot escape entanglement in church-state disputes. The reason is simple: religious groups, like other interest groups in this pluralistic democracy, seek to enlist the government’s support for their purposes. And, so, believers — and, in particular, the Christian majorities — press for recognition, support, and tangible assistance from governments at the local, state and national levels.
Courts are called on to police the boundaries that the framers wrote into the Bill of Rights more than two centuries ago. Congress — and later the states — were prohibited from enacting any law “respecting an establishment of religion” or “prohibiting the free exercise thereof.” Together, it was thought, the two religion clauses would safeguard religious freedom in the new republic.
The Free Exercise Clause has served the country well. Most of the free-exercise cases decided by courts have involved laws with incidental impact on religious practices or beliefs. Only rarely have laws been passed specifically aimed at preventing people from practicing their religions as they saw fit.
The Establishment Clause has proven more difficult to apply. The Supreme Court’s first modern-day encounter, in a 1948 decision, adopted the metaphor of a strict “wall of separation between church and state.” But the ruling upheld government-provided bus transportation for parochial school students.
The high court became stricter in policing that wall in the 1960s with the controversial decisions that banned organized prayer or Bible reading in public schools. In 1985, the court — in an opinion by Justice John Paul Stevens — struck down Alabama's “moment of silence” law for schools on the ground that it was explicitly written to encourage prayer in the classroom.
The court became more lenient of government support for religion in several decisions under former Chief Justice William H. Rehnquist that culminated in the 5-4 ruling in 2002 upholding the constitutionality of school vouchers even though they overwhelmingly benefited students in Catholic schools. Now, under Chief Justice John G. Roberts Jr., the trend appears to be continuing.
Roberts helped form the majority in the new decision, Salazar v. Buono, that blinked at the evident sectarian purpose of erecting a Christian cross as a memorial to the fallen servicemen of World War I. The cross, Justice Anthony M. Kennedy wrote in the main opinion, was “not merely a reaffirmation of Christian beliefs,” but also “a symbol” used to “honor and respect” the nation’s heroes. Reading the opinion naturally brought to mind the exchange during oral argument when the plaintiff’s lawyer noted to Justice Antonin Scalia that there are no crosses on Jewish gravestones.
The organizers of the National Day of Prayer appear to be equally blind to the national ideal of religious freedom and religious diversity. The official Web site for the observance repeatedly invokes Jesus’ name and cites almost exclusively to the Christian New Testament. The site pays not even lip service to the notion of a “Judeo-Christian” tradition, much less to the growing number of Americans who practice other religions or none at all.
In the desert cross case, Justice Samuel A. Alito Jr. endorsed Congress’s solution to the supposed dilemma: transfer the land to the Veterans of Foreign Wars so that it could maintain the cross, still designated as a national memorial for the World War I dead. That solution, Alito said, was faithful to “the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.”
In fact, the framers devised a very practical accommodation two centuries ago: freedom for religious practice plus freedom from government-established religion. Contrary to Alito, courts that do not maintain separation between church and state promote neither religious pluralism nor tolerance.
In her ruling, Judge Crabb saw no “accommodation” in the officially proclaimed day of prayer. The law, she said, was “taking sides on a matter of religious belief.” Better, she suggested, would be to celebrate a National Day of Religious Freedom. With or without an official proclamation, that tradition merits celebration and reaffirmation, every day of the year.
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