Anyone who counted out the influence and power of the National Organization for Marriage should think again. On Tuesday, three state Supreme Court justices in Iowa found themselves out of jobs after voters opted not to send them back to Des Moines for another term. This is the first time in Iowa history that voters have fired justices from the Supreme Court.

And what was their crime? Voting with the unanimous majority in Varnum v. Brien to uphold a lower court’s ruling that the state’s limitation of marriage to only between a man and a woman violated the equal protection clause of the Iowa Constitution. This ruling instituted marriage equality in Iowa in 2009, making the state one of only five states in the nation (plus the District of Columbia) that allow for full marriage rights for all couples. As reported in the New York Times, this vote was intended to send a message nationwide:

Leaders of the recall campaign said the results should be a warning to judges elsewhere.

“I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”

The campaign to remove the three justices at the ballot box was heavily supported by the National Organization for Marriage and the American Family Association. The Des Moines Register reports that over $650,000 from these and other groups was spent on the campaign to remove the three justices.

As for the justices themselves, they saw something nefarious afoot. From the Times:

The judges declined requests for interviews but released a statement that decried what they called “an unprecedented attack by out-of-state special interest groups.” The statement defended the system for selecting judges but offered what a veiled warning about populist impulses to remake the judiciary: “Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.”

Judicial retention elections are meant to serve as a democratic stamp of approval on the work of judges. For example, in Iowa the justices do not run contested campaigns; voters are merely asked on election day if they approve of retaining the justices in question, and more than fifty percent must vote yes for the judge to be retained. Justices usually do not campaign to retain their own seats, and receiving less than half the vote is rare. By the very nature of the judicial system, justices are likely to rule on controversial issues; with retention elections there is a great deal of risk that the work of the justices will be politicized. This fear was expressed by Joseph R. Grodin, a law professor and former California Supreme Court justice who was voted out in 1986 after a campaign asserting that he was soft on the death penalty. He told the New York Times:

Obviously it has an impact on the independence of judges and how they think of their role — I think that’s demonstrable…But more than that…I think the damage is not on judges, but that courts will come to be seen and judges will come to be seen as simply legislators with robes.

And if you look at the National Organization for Marriage’s victory statement about the Iowa elections, released yesterday, it is clear that they do desire to politicize the work of the bench. From the statement:

“The victories we have achieved this election are truly historic and stunning,” said Brian Brown, president of the National Organization for Marriage (NOM). “First and foremost, we wanted to defeat the judges in Iowa who had usurped the will of the people and imposed gay marriage in that state. The three judges were overwhelmingly rejected, sending a powerful message to any judge who thinks they can impose gay marriage by judicial fiat against the wishes of the people. We thank Iowa for Freedom, the American Family Association, and the Campaign for Working Families for working together to hold these judges accountable.”

If Iowa judges are limited to making rulings that are only supported by the majority of Iowans, then obviously the power of the judiciary in Iowa to defend the State Constitution would be completely neutralized. Why bother having a judicial branch with the power of examining constitutional questions at all? Of course, I strongly suspect that the language of direct democracy is merely what the NOM finds convenient in making its argument against marriage equality. As the struggle to defend marriage equality continues, arguments against it will evolve, especially in light of the fact that support for marriage equality continues to increase across the United States.

In the meantime, expelling the justices from Des Moines does not change the fact that marriage equality remains in effect in Iowa. But it could send a chilling national message that the Religious Right will pour resources into campaigns around the nation opposing other justices who make rulings perceived to be too friendly to LGBT rights, therefore staying the gavel of justices who want to side with, well, justice. This is the most pernicious effect of Tuesday’s judicial retention election in Iowa, and it could have national consequences. But the lesson is learned: in future elections of this nature, outside organizations on the side of marriage equality will have to get down in the mud a little bit too, spend some money, and work to defend the judges who rule in favor of equal rights under the law for all.

Two candidates for “Man Bites Dog” headline of the year surfaced last week.

“Town Protects Tavern from Church.” No, this is not a typo. In Hampshire, Illinois, just west of Chicago, the Faithway Baptist Church sought permission from the village board to open a youth center. Normally, that would be a no-brainer, but in this case the youth center would have been across the street from The Kave, a comfortable neighborhood watering hole offering karaoke, shufflebowl, and Cubs baseball. Illinois law prohibits issuing a liquor license to any establishment operating within 100 feet of a church. Although it doesn’t prohibit a church from opening near a tavern, the village board realized that if The Kave were to change ownership in the future, it would be unlawful to grant the new owner a license, so The Kave would be gone. In a stunning display of common sense, the Board decided that would be unfair, and told Faithway Baptist to look elsewhere.

That decision probably violated federal law, as we’ll see in a minute. But first the other headline: “Strippers Protest Church.” The Foxhole is a business establishment in Warsaw, Ohio, offering entertainment a little edgier than karaoke and shufflebowl. For the past four years, though, Pastor Bill Dunfee of the New Beginnings Ministries Church – which is not across the street, but four miles away – has led a campaign of harassment against The Foxhole, its employees, and its customers. Dunfee and his congregation would show up outside The Foxhole, sometimes with bullhorns, snapping photos of customers and their license plates to violate their privacy online, and berating them for being evil as they entered and left the premises. Dunfee has also been pursuing legal remedies, including zoning laws, to throw The Foxhole employees out of work. “You can’t share territory with the Devil” growls Pastor Dunfee, who says he is intent on glorifying Jesus. Read the rest of this entry &raquo

The reaction of the Catholic Church to last week’s court decision striking down California’s anti-gay marriage Proposition 8 was swift and to the point. Speaking for the US Conference of Catholic Bishops, Cardinal Francis George mourned that “It is tragic that a federal judge would overturn the clear and expressed will of the people in their support for the institution of marriage.” On the Protestant side, Focus on the Family chimed in that “Judge Walker’s ruling raises a shocking notion that a single federal judge can nullify the votes of more than 7 million California voters.”

This sudden Christian solicitude for the will of the people should make anyone familiar with the history of Christianity gag.

Democracy was invented by the Pagan Greeks; there is some reason to believe that Pagan Germanic tribes practiced a rough form of democracy as well. It certainly isn’t found anywhere in the Bible; when 250 “men of renown” complained to Moses that he was being overly autocratic, God obligingly opened a pit in the earth to swallow them up.

After Christianity seized control of the Roman Empire, democracy vanished from Europe altogether; Middle Ages society was founded on Augustine’s iron notion of rule by God, not by man. The Middle Ages Church did all it could (and that was quite a bit) to snuff out any glimmer of democracy before it could take hold. When the Emperor Frederick II published his “Constitution of Melfi” in 1231, it provided among other things for a representative assembly, with each town sending two delegates to inform the Emperor about local needs. A livid Pope Gregory IX excommunicated Frederick and called him the Antichrist. That should not have been surprising, for only a few years earlier Pope Innocent III had declared England’s Magna Carta, the first written expression of the English people’s rights, null and void because it purported to rein in the power of a divinely ordained monarch and vassal of the Pope.

The Protestant Reformation did nothing to advance the cause of democracy; neither Luther nor Calvin had the slightest intention of giving the common people any more power than the Pope had. By the 1640s, when the English Civil War broke out, the rebels were a curious mix of proto-democrats, heavily influenced by John Lilburne, and radical Calvinists, led by Oliver Cromwell. Lilburne’s goal was simple: he wanted all adult males to be able to elect Parliament, rather than just a small handful of the propertied class. Cromwell’s goal was equally simple: rule by the God experts, to impose morality on a sinful island. Cooperation between the two camps was easy when both were simply warring against the status quo, but once the king was defeated the incompatibility of their goals quickly surfaced. Cromwell ordered Lilburne’s arrest for treason, but after a dramatic trial before a jury Lilburne was acquitted. Didn’t matter; Cromwell threw him back in jail anyway, without bothering to file charges. Cromwell proceeded to expel the elected members of Parliament who voted against him – so much for democracy. Read the rest of this entry &raquo

Yesterday was the last day of the US Supreme Court’s 2009-2010 term, and it was a busy one. Among the four decisions reached was one of the most important church-state separation cases in recent history, Christian Legal Society v. Martinez.

The case concerns a public university, Hastings College of Law in San Francisco, a campus of the University of California system. Like all colleges, Hastings allows students to form organizations and officially register them with the school, which in return gives them access to certain resources, including preferential meeting room space, campus communication tools, and access to student activity funds. In return for this official status, however, Hastings requires registered student organizations to adhere to the university’s nondiscrimination policy, which forbids discriminating on a basis of, among other things, religious beliefs and sexual orientation, and requires student organizations to accept any Hastings student as a member.

And therein was the problem for the Christian Legal Society, a national organization that asked in 2004 that its Hastings chapter be exempted from the nondiscrimination policy because all its members are required to sign a statement of faith that, among other things, would forbid him or her to be gay or lesbian. Hastings declined to issue such an exemption and denied official status to the Christian Legal Society chapter, and a lawsuit shortly followed.

The Christian Legal Society’s argument that it had been discriminated against by Hastings College didn’t seem to hold any water with the lower courts: both the US District Court and the 9th Circuit Court of Appeals ruled in favor of Hastings, finding that there had been no discrimination against the Christian Legal Society. And so it came to pass that the US Supreme Court heard the case on April 19th, 2010 and issued its 5-4 ruling in favor of Hastings yesterday, on the last day of the court’s term.

In the ruling, Justice Ruth Bader Ginsburg wrote for the majority (PDF) that (emphasis added):

In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy. The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.

In other words, as the nondiscrimination policy applies to all student organizations, what the Christian Legal Society was actually asking for was preferential treatment that Hastings was not obliged to give.

In a succinct concurring opinion, retiring Justice John Paul Stevens wrote:

Although the First Amendment may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them.
…
As written, the Nondiscrimination Policy is content and viewpoint neutral. It does not reflect a judgment by school officials about the substance of any student group’s speech. Nor does it exclude any would-be groups on the basis of their convictions. Indeed, it does not regulate expression or belief at all.

In other words, the real issue here isn’t whether or not Hastings allows the CLS to discriminate, but rather, whether or not Hastings must endorse that discrimination by making the CLS an officially registered student organization, with access to all of the university and student funded benefits therein. And the answer to that question from the five justice majority was a resounding “no.”

Divided as the current court almost always is, the three other conservative justices on the court joined Justice Samuel Alito on his dissent, in which he stated:

The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”…Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.

But it is not at all clear from the case just how the freedom of expression of the CLS was hindered. At no time was freedom of speech denied for the CLS or its members. The organization was even allowed to meet on campus and hasn’t been inhibited from sponsoring events. But it will have to do so with less access to the resources provided by Hastings to official student organizations. The key is that Hastings College applies its anti-discrimination requirement equally and across the board to all student organizations, not just to the CLS, so if they refuse to comply with it, how can they then claim that they have been unfairly singled out?

Secular and civil liberties organizations all over the nation, including the American Humanist Association, Americans United, and the ACLU, applauded the ruling and celebrated this victory in such a vital separation of church and state case. To understand the significance, consider for a moment if it had gone the other way, and if the Supreme Court had ruled that Hastings was discriminating against the CLS by requiring them to adhere to the university’s anti-discrimination code. This would actually set aside religious student organizations as a special class that did not have to adhere to regulations that apply to other student organizations. It would have been a disaster for the separation of church and state, because students at Hastings would have been forced to support, through their own required student activity fees, an organization that would not even necessarily admit them as members!

Given the nature of the Hastings anti-discrimination policy, which is described as an “all-comers” policy, meaning that student organizations must accept as members all Hastings students who wish to join, rather than the more common university policy of disallowing any student group to discriminate based on certain criteria, it is not clear if this ruling will have far-reaching implications for universities across the United States. Ultimately the court stuck to the “all-comers” policy in its ruling, which it found to be viewpoint neutral when applied to all student organizations at Hastings, and the court did not rule on the broader question of other types of anti-discrimination policies.

Yesterday’s ruling was a great victory for the separation of church and state, and it was also a high note for the end of the final term of Justice John Paul Stevens, who is now retiring after a nearly 35-year long distinguished career of defending the Bill of Rights and the Constitution. He will surely take his place in history alongside other heavyweight rights-defenders of the Supreme Court, including Earl Warren and Thurgood Marshall. He is truly a great American, and his presence will be sorely missed on the nation’s highest court.

Happy National Day of Reason! Today we commemorate that most vital of human faculties, the ability to reason, while maintaining vigilance against encroachment on the separation of church and state here in the USA. And it is not a coincidence that today also falls on the National Day of Prayer, the congressionally mandated prayer day that was instituted in 1952 and is implemented every year by presidential proclamation. While this year was no exception, hopefully the National Day of Prayer is not long for this world.

For this National Day of Reason, which is being celebrated around the nation with commemorative events, city proclamations, and even a visit to Robert Ingersoll’s grave, I wanted to consider for a minute an idea put forth in a Los Angeles Times op-ed by the writer Marc Cooper, a contributing editor to The Nation magazine. He humbly suggests, in light of the impending retirement of Supreme Court Justice John Paul Stevens, that rather than agonizing over the lack of protestants on the court, President Obama should do something completely different (and what some may even regard as radical):

Though the court without Stevens will be left with six Catholics and two Jews, the open seat should not go to either domination. Nor should it go to a Presbyterian, a Lutheran, a Methodist, a Muslim or even a Zoroastrian. If it did, that would make nine people who all have one religious principle in common: a belief in religion.

Clearly, the next person to take the bench should be an atheist.

An atheist on the high court? Is this guy crazy? Who would ever have supported such a thing?

While few sitting politicians have the political courage to name a declared nonbeliever, it is something that Thomas Jefferson (and several others among the founders) might well have done.

In an 1823 letter to John Adams, Jefferson was forthright about his views of religion, and Christianity specifically. “And the day will come when the mystical generation of Jesus, by the supreme being as his father in the womb of a virgin will be classed with the fable of the generation of Minerve in the brain of Jupiter,” Jefferson wrote. “But may we hope that the dawn of reason and freedom of thought in these United States will do away with this artificial scaffolding, and restore to us the primitive and genuine doctrines of this most venerated reformer of human errors.”

In other words, Jefferson liked what Jesus, the man, stood for, but could definitely do without the rest of the bunk.

For those who do not support the separation of church and state, it is one of the most supremely uncomfortable facts in U.S. history that so many of our nation’s founders were skeptics on matters of religion. Besides coining the phrase “wall of separation between Church & State” in his famous letter to the Danbury Baptists, Jefferson also edited his own version of the Bible, with all supernatural elements excised (perhaps this is why the religious-right dominated Texas State Board of Education recently demoted him within the state social studies standards). So I think Mr. Cooper is on pretty solid ground here when he asserts that President Jefferson would have considered such an appointment to the court.

So why appoint an atheist to the Supreme Court? Cooper says:

Having an atheist justice, however, would not primarily be a matter of identity politics and some sort of equal representation. Rather, a nonbeliever justice would be a mighty blow in favor of the secular principles of “reason and freedom” of which Jefferson spoke.

Heaven knows we could use some more of that stuff. Religion plays far too influential a role in our political and civic life as is. I personally don’t care what sort of superstition makes you sleep better at night, but I think we would all benefit if you left it behind closed doors and kept it as far away as possible from public policy. How about a policy of don’t ask, don’t tell?

Consider how many of the cases that go in front of the court directly impact atheists and other freethinkers and nonreligious people. For example, a stark reminder was provided last October as to just how obtuse a Supreme Court justice could be on the question of whether or not a large Christian cross on a government land preserve (ostensibly there as a memorial to the dead of World War I) actually constituted a religious symbol. At the oral arguments for the Salazar v. Buono case, the following remarkable exchange took place between Justice Antonin Scalia (a conservative Catholic) and the attorney representing the American Civil Liberties Union, Peter Eliasberg:

JUSTICE SCALIA: The cross doesn’t honor non-Christians who fought in the war? Is that — is that –

MR. ELIASBERG: I believe that’s actually correct.

JUSTICE SCALIA: Where does it say that?

MR. ELIASBERG: It doesn’t say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that’s why the Jewish war veterans –

JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew. (Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE SCALIA: I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.

MR. ELIASBERG: Well, my — the point of my — point here is to say that there is a reason the Jewish war veterans came in and said we don’t feel honored by this cross. This cross can’t honor us because it is a religious symbol of another religion.

Consider the implications of a Supreme Court Justice actually arguing that the Christian cross represents all Americans! As if it were identical to our national flag or otherwise served as some sort of universal symbol!

This isn’t to say, of course, that a justice on the Supreme Court must be a nonbeliever in order to respect and promote the constitutionally mandated separation of church and state. As Americans United for the Separation of Church and State has documented, Justice Stevens, a protestant, has been one of the nation’s greatest friends to religious freedom and the separation of religion from government.

But with this new vacancy coming up on the court, isn’t it time, as Marc Cooper argues, to ensure that the large number of American nonbelievers are represented? Isn’t it time to install a voice for reason and secular judgment on one of the most powerful institutions in the United States? Isn’t it time for President Obama to nominate a nonbeliever?

I know, I know…I’m not going to hold my breath. But times are changing and the power of atheists, humanists, and other nonbelievers is growing. We’ll get there. In the meantime, happy National Day of Reason!

I’m sure you’ve heard of Randall Terry, who for years was the face of the anti-choice movement in the United States. Even though he hasn’t been the head of Operation Rescue, an organization that he founded, since 1989, he has managed to keep his name out there as a prominent anti-abortion and anti-reproductive choice activist. Although his star has faded in recent years, he is trying harder than ever to make a comeback to national prominence.

The Washington Post has an article today about some of Terry’s recent efforts to stay relevant and keep his face on the national anti-abortion brand. It begins with the startlingly creepy image of Terry and his acolytes smearing fake blood all over their hands and copies of the Roe v. Wade ruling while standing outside the confirmation hearings for Sonia Sotomayor. And it’s all downhill from there, as Terry tells the journalist that using fake blood for his protests came to him in a “vision” (is that what he vaingloriously calls having a thought?) while he was planning ways to disrupt the hearings.

It turns out, though, that this was not his first vision; as the Washington Post article states, in reference to the founding of Operation Rescue:

Terry, 50, was in his 20s when he founded Operation Rescue — the result, he said, of a vision from God that appeared before his eyes at a prayer meeting. The vision was, he said, a scroll with instructions to stop abortion. Along with the scroll, he saw thousands of people gathered in front of abortion clinics to save babies, and he saw himself being interviewed on “Donahue,” the popular TV talk show hosted by Phil Donahue.

After serving as a primary spokesperson in favor of federal interference in the Terri Schiavo case in 2005, the Post states that Terry had more or less faded from view for several years. But he is on the upswing once more, getting his name back in the press for the demonstrations against President Obama’s speech at Notre Dame University and his unbelievably hateful comments after the assassination of Dr. George Tiller. (Amongst other things, he said, “George Tiller was a mass-murderer. We grieve for him that he did not have time to properly prepare his soul to face God…Those men and women who slaughter the unborn are murderers according to the Law of God.)

And now he is attempting to lead the charge against President Obama’s middle-of-the-road Supreme Court nominee, Sonia Sotomayor. Adele M. Stan of AlterNet attended Terry’s demonstration this past Sunday on the steps of the US Supreme Court, and reported on Terry’s demand that the anti-abortion senators filibuster Sotomayor’s nomination:

Terry made the camera operators move forward and adjust their mikes. “Pro-life senators have a moral obligation to filibuster Sotomayor,” he began. “Pro-life Republicans, pro-life Democrats seduce us with their words. They use our money, they take our man-hours, they take our votes, and then throw us away like a used-up mistress after an election. It’s disgusting! If Sen. [Sam] Brownback and Sen. [John] McCain and Sen. [Knute] Nelson and Sen. [Bob] Casey believe that Roe v. Wade must be overturned, then they must filibuster Sotomayor. You can’t say you want to overturn Roe on the one hand, and then vote for somebody who will uphold Roe on the other. It is treachery, hypocrisy, laziness and betrayal.”

He certainly sounds frustrated! Perhaps this ties into Amanda Marcotte’s assertion in the Guardian that Republicans overall have not made abortion front and center in Sotomayor’s confirmation hearings, opting to focus on race and gender-based attacks against her instead. Says Marcotte:

Anti-choice activists used to own the issue of Supreme Court nominations so thoroughly, they were able to bully George Bush out of nominating Harriet Miers, despite her anti-choice views, in no small part because they simply don’t trust women not to stick by their own. Obviously, with Republicans out of power, anti-choice activists can’t block the nomination, but now they can’t even get Republicans to consider their demands a top priority.

The most obvious reason is that gender has been demoted to a second-tier issue so that Republicans can work more efficiently with arguments over race against Sotomayor, playing off anti-Hispanic sentiment and rightwing folk beliefs about a Latino “takeover” to inculcate resentment in their base. Anti-choicers are feeling the sting of falling out of fashion in the circles of rightwing nastiness and resentment.

Marcotte goes on to say that she also believes Republicans may be a little more toned down on anti-choice rhetoric this time around because of the recent murder of Dr. George Tiller. Perhaps they don’t want to be associated with a movement that is so violent in the eyes of many Americans. She’s not optimistic, though, that this distance will last.

I would be shocked if the Republicans filibuster Sotomayor, and I’m sure she’ll sail through confirmation. So the real question here is, what does the future hold for Randall Terry after his stunts at the Capitol are over? The Post notes that some anti-choice activists are less than enthusiastic about his desire to be a more public figure once again:

Leaders of the antiabortion movement are cringing at Terry’s sudden return. They say his incendiary rhetoric and showy tactics turn off ordinary Americans and reflect Terry’s struggle to regain his glory years.

“It’s sad in a way,” said Fredericksburg antiabortion activist Patrick Mahoney, who was close to Terry at one time but, like others in the movement, is now estranged from him. “It’s almost like a heavyweight boxer who’s past his prime. The movement has gone by him.”

While I fear the harmful consequences of his horrific rhetoric and stunts, particularly because they could inspire further violent acts, nevertheless I do feel that Randall Terry serves a useful function for those of us that favor reproductive rights. With his stunts, his jugs of fake blood, his followers disrupting Senate Judiciary Committee meetings, and his references to having “visions” that guide how he organizes his protests, he does represent one idea very well: that his anti-choice position is on the outer fringe. He makes it clear that his strong belief that women should not have control over their own bodies is in fact an extremist position to be defended by fringe and even dangerous characters such as him, operating on the margins of society. His extremist tactics lay bare the extremist nature of the entire anti-choice stance. Even so, we cannot discount the constant threat that Terry’s ugly and explosive language poses. He represents the worst of the intertwining of religion and social activism, when a fanatic believes that he speaks on behalf of his god and that his actions bear a holy endorsement. And we certainly know what kind of trouble that can lead to.

I recently attended a panel discussion at the Capitol on the Sotomayor confirmation. The event was chaired by Sammie Moshenberg of the National Council of Jewish Women.

The first speaker was J. Brent Walker, director of the Baptist Joint Committee, who noted that the First Amendment contains two clauses: establishment and free exercise. Historically, he argues, both clauses have been read quite broadly. This has begun to change; whereas historically government has been forbidden from touching religion in anyway, today government must simply treat religion as it would any other group. So, government can use money to provide services through religious groups and can issue education vouchers. Walker argues that Sonia Sotomayor has, in the past, espoused a rather broad view of these clauses. That said, it would be tough for her or basically any candidate to fill David Souter’s shoes in terms of taking a broad view.

The second speaker, Melissa Rogers of Wake Forest University, picked up where Walker left off and argued what is important in a judge is that he or she understands it is the individual who counts, not the established church. To draw the point out, a person who takes some tiny facet of their religion such as a feast or some beads very seriously is as entitled to those markings of their faith as a Christian is to the cross. Their belief need not be reasonable or mainstream, simply deeply held. In the past Sotomayor has adequately upheld this doctrine.

The third and final speaker was Richard Katskee, assistant legal director of Americans United for Separation of Church and State. Katskee argues that church/state separation issues come down to essentially three facets: where a display is allowed, who has standing to sue, and whether the government can fund. Sotomayor has ruled in two cases affecting standing and display. In both the Flamer and Mehdi case she has upheld precedent set by the higher courts and many argue ruled correctly even if the outcome was less than desirable. As for funding, no case that has come before her has given the opportunity for her views to come out.

The Baptist Joint Committee recently released an analysis of Sotomayor’s decisions. They come to the same conclusion the speakers did: “Sotomayor’s written record raises no red flags.” She has ruled on very few free exercise cases and no establishment clause cases. Her “writings include few, if any, statements articulating how the First Amendment protects religious liberty, promotes the voluntary nature of religion, prevents governmental interference in religion, and tends to reduce conflict among religions.”

Confirmation hearings begin July 13^th.

In January 2008 Jose Padilla sued John Yoo for $1. Padilla is a U.S. citizen who was incarcerated and tortured while the government challenged his right to Habeas corpus and he wants one freakin’ dollar. The notion that Padilla thinks one dollar will compensate for a round in the star chamber of U.S. counterterroism is a dead giveaway; he has something bigger in mind.

Last week, U.S. District Judge Jeffrey S. White issued a ruling refusing to dismiss Padilla’s $1 civil suit, thereby clearing the way for it to move to discovery. Yoo and the Department of Justice must turn over a host of internal information to Padilla and his lawyers. Not only will all sorts of new evidence come out but if the ruling stands, the door is open to other Bush administration officials facing personal liability for their actions in office. It won’t be long before there is a million dollar suit against Jay Bybee.

White took a historic step, but not an unprecedented one. Since the 1940’s people have been able to sue the government under the Federal Tort Claims Act. There is no legislation authorizing suits of federal employees; however in Bivens vs. Six Unknown Named Agents (1971) the Supreme Court held one can sue public officials as a means of protecting one’s rights.

Since when do more than 270 plaintiffs enjoy losing?

Mike Newdow’s email went on to say that the dismissal order in Newdow v. Roberts “now sets us up to file an Appeal as the appellants, thus providing us with the opportunity to submit a 14,000 word Opening Brief and a 7,000 word Reply Brief in the Court of Appeals.”

On March 12, U.S. District Court Judge Reggie B. Walton dismissed our case challenging the infusion of religion into Barack Obama’s inaugural ceremony.

Judge Walton was disingenuous in his ruling that “the plaintiffs have failed to demonstrate that an injunction against any or all of the defendants could redress the harm alleged suffered by plaintiffs” while at the same time noting in a footnote that the plaintiffs had filed an amended complaint that would (in my opinion) have likely cured any defects. For example, Judge Walton could have: (1) declared the acts of Chief Justice Roberts appending “so help me God” to the constitutionally prescribed presidential oath and the Presidential Inaugural Committee for allowing sectarian prayers in the invocation and benediction to be violations of the First Amendment, (2) enjoined the federal defendants and others unnamed in future inaugurals from doing the same and (3) awarded the plaintiffs nominal damages.

Judge Walton also held that our plaintiffs lacked standing because “none of the plaintiffs in this case have standing to challenge the defendants’ actions as pled in the complaint because they have identified no concrete and particularized injury.” This, too, is disingenuous, because the District Court had in its possession over 250 sworn statements alleging injury. Again, the Judge Walton erred.

I have spent many hours researching federal cases in which the court said that a plaintiff who personally witnessed government sponsored prayer lacked standing. To no surprise, the only cases that I have found are Newdow I (Newdow v. Bush, 2001 presidential inaugural), Newdow II (Newdow v. Bush, 2005 presidential inaugural) and now Newdow III (Newdow v. Roberts, 2009 Obama inaugural). Coincidence? Conspiracy?

I have a simple answer. Newdow I, II and III were just too hot to handle.

Newdow (i.e., Newdow III), like its predecessor cases, was too hot for the District Court because, like Abington Township School District v. Schempp, Newdow it would uphold minority rights over majority rule. (Schempp, consolidated with Murray v. Curlett, is the landmark 1963 Supreme Court decision that held school sponsored Bible reading and prayer to be unconstitutional.) And you know about the uproar over little kiddies not being denied their God given right to say their prayers in school. Imagine the excruciating squawking of the megachurches if Mike Newdow and the other plaintiffs win.

As I have said elsewhere, Newdow is foundational – it would take monotheistic (Christian preferred) religion out of the executive branch (where it doesn’t belong anyway). What would be next? Congressional chaplains? “Under God” in the Pledge of Allegiance? The national motto of “In God We Trust”? Or military bands playing “God Bless America”?

The Christian Right can’t afford to lose this one and the courts know it! Or the dominoes will fall.

“Out of sight, out of mind” goes the saying.

So many may think that because the 2009 presidential inauguration is history, a lawsuit brought by Michael Newdow, 30 other individuals, and 11 organizations to prevent the infusion of religion into the ceremony is over. Not so.

Newdow and I are now working on a brief – due February 23rd – to explain to Judge Walton why he shouldn’t dismiss the suit. There are so many reasons, including (1) the plaintiffs were in fact harmed and seek a declaration from the court that their Establishment Clause, Free Exercise Clause, and Religious Freedom Restoration Act rights were violated and (2) the unconstitutional practices (the Chief Justice adding “so help me God” to the presidential oath and the sectarian prayers in the invocation and benediction) are likely to repeated in 2013, 2017, and so forth if they aren’t enjoined by the court.

While there are a number of hurdles in this case, the inability of the judge and most Americans to recognize the “harm” caused by the religious practices at the presidential inaugural ceremony is most troubling.

In truth, this is a common human shortcoming. When things are going our way, we often fail to recognize that others may be suffering. (I’m trying to be nice by not calling it tyranny of the majority.)

The following is a description by Professor Christopher C. Lund of the harm caused by legislative prayers:

A government whose legislative prayers are acceptable to one religious group but not another makes the latter group feel unwelcome, and it ends up exerting pressure on the disfavored group to change their religious ways.

See Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, page 25. This description applies equally to executive prayers (like the religious activities complained of in Newdow v. Roberts) and public school prayer cases. I encourage all Rant & Reason readers to read Professor Lund’s 56 page article for an excellent discussion of the issues.

Rather than rant on, I invite readers to express in your own words whether (and how) you felt harmed by the infusion of religion into the 2009 presidential inauguration ceremony, or not.