The Great Balancing Act of the First Amendment

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I find that the media is misrepresenting the Town of Greece v. Galloway Supreme Court Case in subtle ways, ignoring the pragmatism of the principles upheld. The subject of this article is to evaluate the Supreme Court’s decision, along with the dissents from the actual opinions published by the court, not from what the media purports.

You can find the Supreme Court’s official and constitutionally authoritative summary and ruling of the case here. I will refer to it continually, and do recommend reading – it’s easy to understand.

Before continuing, let’s have a lesson on the First Amendment. When I refer to what is constitutional, I do not claim higher authority on constitutional law than the very best: the Supreme Court justices. I am merely stating what I find better in line with the ethical spirit of the First Amendment and the separation of Church and State. There are two components of the First Amendment to be discussed:

  • Establishment Clause: “Congress shall make no lawrespectingan establishment of religion…
    • No government body can prefer one religion over the other.
  • Free Exercise Clause:        …or prohibiting the free exercisethereof”
    • Likewise, no government body can prevent the exercise of religion.

The two components of the First Amendment above form the Religion Clause, which is a balancing act of its two aspects. On the one hand, government cannot impose a particular religious belief on citizens. But government also cannot prevent the exercise of religion by citizens. The two come in conflict in a number of unexpected ways which will be covered throughout.  For example, when dealing with citizens in government: the government member cannot impose his/her religious beliefs but is also free to to exercise their religion in government.

In the delicate relationship between the Establishment Clause and the Free Exercise Clause, we must be clear what this entails in Jefferson’s separation of Church and State. As a society, we emphasize that religion cannot influence government on an institutional scale. We forget this also means government cannot influence religion on that scale. Stephen L. Carter, a Yale Law Professor and once intern to Justice Thurgood Marshall, in his book A Culture of Disbelief, warns that  “the American idea is threatened when religious power mixes too intimately with political power…[but] the greater threat comes when the Church is no longer kept merely separate but is forced into a position of utter marginality.” To summarize, government members have every right to bring their religion into government via the Free Exercise Clause, but are not allowed to impose their religion institutionally via the Establishment Clause.

 

On to Greece v. Galloway. In brief, the Town of Greece, New York, had monthly town hall meetings that began with a religious invocation. “From the time Greece established its prayer practice in 1999 until litigation loomed nine years later, all of its monthly chaplains were Christian clergy” (Kagan 69). After a brief spell to avoid litigation with a Jewish, Wiccan, and Bahai invocation, the Town of Greece returned to using solely Catholic and Protestant prayer service. The Supreme Court has ruled  “that no violation of the Constitution has been shown” (The Court 5), and I will critique their reasoning below.

For the purpose of clarity, here are the opinions published by the Court:

  • Majority opinion (The Court, Justice Alito, and Justice Kennedy): these opinions believe that sectarian prayers in a government assembly are constitutional in principle, “so long as the practice over time is not exploited to proselytize or advance any one, or to disparage any other, faith or belief” (The Court 19). These opinions do not believe that the Town of Greece’s invocations were doing any of those things,  and is thus constitutional. These opinions have no problem with the town “acknowledging the central place that
    religion plays” in their lives (Kennedy 27).
  • Dissent opinion (Justice Breyer, Justice Kagan): these opinions believe that sectarian prayers in a government assembly are unconstitutional in principle. These opinions do believe that the Town of Greece’s invocations were sectarian, and are thus unconstitutional. These opinions do agree with the majority that Americans “are a religious people” and “prayer draws some warrant from tradition in a town hall” (Kagan 73)

What we see clear in both opinions is the idea that opening prayer is an acceptable part of any government body, and does not violate the Establishment Clause of the Constitution. Members of government and the public, both of which are citizens of the United States, have the right to Free Exercise which includes public prayer. The question at hand is whether or not public prayer, following the Free Exercise Clause, can be sectarian and still not “prefer one religion over the other” via the Establishment Clause.

Following the majority opinion, in principle I do not think that sectarian prayer necessarily exploits, proselytizes, or disparages faiths or beliefs and thus is constitutional. Rather, it reaffirms that Americans “are a religious people”. The reasoning is as so: “mature adults… [are] presumably not readily susceptible to religious indoctrination or peer pressure” (Kennedy 22-23). A prayer that calls on the name of Jesus is simply accommodating for those who recognize the divinity of Jesus, who have the right to Free Exercise of their religion in public forum, and who may be more readily prepared to govern when in a spiritual state of consciousness that is satisfactory to them. Likewise, for a public audience such as one in the town hall with Christians will likely feel more comfortable and assured of the government’s responsibility to religious accommodation should their religion be specifically invoked. It will likely not, when used selectively, influence the religious practices of others in a room such as to violate the First Amendment.

When a governing body promotes the same sectarian language or prayers repeatedly however – from the same sects or religion – it is without a doubt in violation of the Establishment Clause. This was the case of the Town of Greece, which for nine years straight, on a monthly basis, used only prayer invocations from Catholics and Protestants. The majority opinion seems to beat around the bush and simply ignore the fact that this cannot possibly be anything but the promotion of one religion over all others. It is unconstitutional, and as one can read for oneself, the arguments the majority opinion fall flat on their feet when reading the dissents. It is excluding those that do not adhere to the values of those prayers and equates those values to the values of civic participation in Greece, New York.

For that reason, sectarian prayers should not always be of the same sect or religion over and over again. Justice Kagan, who dissents, writes: “when one month a clergy member refers to Jesus, and the next to Allah or Jehovah…the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed” (Kagan 19). Here, I agree with the dissent that sectarian prayer is alright so long as the prayer is not exclusively of one sect or religion.

Some may argue that sectarian language should be banned altogether in exchange for inclusive prayer. There is indeed a significant difference in inclusivity from a prayer that calls for shared ethical values or a commitment to the divine than the Lord’s prayer, a Jewish chanting of Sh’ma and V’ahavta, or a Muslim Adhan (Kagan 59-60). That is certainly true and all opinions published agree on the preferableness of inclusive language. However, it comes with an incredible danger for the court to specify exactly what is inclusive and what is not, as well as difficult to justify constitutionally. By banning certain religious invocations and allowing others government would “prevent the excerise of religion’ in the way adherents (who are citizens) would have it, undoubtedly violating the Free Exercise Clause. It would also “prefer one religion over the other” in terms of prayer, clearly against the Establishment Clause. Ironically, totally mandated inclusivity that is specified by the Court would violate the Religious Clause of the First Amendment more then anything else.

That is where I disagree with the dissent, which seems to call for strict impositions of inclusivity on chaplains in public prayer services. Justice Alito’s majority opinion, section II from page 32 to 35, masterfully explains that point. Justice Brewer is right in that Courts should require that government bodies recommend inclusive prayer services, but they should not be mandated for a number of complications Alito addresses:

Not only is there no historical support for the proposition that only generic prayer is allowed, but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder. It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country. Many local clergy may find the project daunting, if not impossible, and some may feel that they cannot in good faith deliver such a vague prayer. In addition, if a town attempts to go beyond simply recommending that a guest chaplain deliver a prayer that is broadly acceptable to all members of a particular community (and the groups represented in different communities will vary), the town will inevitably encounter sensitive problems. Must a town screen and, if necessary, edit prayers before they are given? If prescreening is not required, must the town review prayers after they are delivered in order to determine if they were sufficiently generic? And if a guest chaplain crosses the line, what must the town do? Must the chaplain be corrected on the spot? Must the town strike this chaplain (and perhaps his or her house of worship) from the approved list?

Justice Breyer does correctly note the House of Representative’s recommendation for inclusivity, and I do think Justice Alito would agree that these would be suitable for the Town of Greece as requirements for a prayer service. Unfortunately, for political reasons, the sake of simplicity, or my assessment being wrong, these recommendations were foolishly not recommended:

“The guest chaplain should keep in mind that the House of Representatives is comprised of Members of many different faith traditions.

“The length of the prayer should not exceed 150 words.
“The prayer must be free from personal political views or partisan politics, from sectarian controversies, and from any intimations pertaining to foreign or domestic policy” (Breyer 55).

 

To conclude, I find that sectarian prayer in government bodies to be perfectly Constitutional and in no way violating the separation of Church and State, as a result of the delicate balance between the Establishment Clause and the Free Exercise Clause. However, these sectarian prayers cannot all be from the same religion at all times, and inclusive prayers should be recommended by the Courts and by government bodies, while not mandated or specified by government bodies. The majority is right to argue against mandated and specified inclusion, and the dissent is right to declare the Town of Greece’s religious prayer services unconstitutional for praying in the same religion. In the plural society America is, religion for better or for worse has its role in public discourse, and we must be willing to accept that.

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Note: I did not discuss the Court’s use of Marsh v. Chambers, the tradition of prayer service as a historic reality, the municipal technicalities of Greece’s selection of clergymen, or the the role of religion in a plural society because I think that has been thoroughly discussed on the internet. For that end, I commend Justice Kagan’s use of Marsh v. Chambers, the entire court’s use of the tradition of prayer service, the dissent’s criticism of Greece’s selection process, and I’m a bit more muddled on the role of religion in plural society. I definitely disagree with Justice Kagan on that point, and somewhat agree with the majority – however, I think American civil religion is rightly withering into a myth.

I also did not discuss the implications of the Town of Greece v. Galloway, but to be flat honest the Court for the most part reaffirmed Marsh and very little has changed. It is useful to analyze what it should have been, rather than the status quo that been preserved, however, and that is what I have done.

Fascists for Europe

http://www.dissentmagazine.org/blog/fascists-for-europe

Don’t call a Gpysy a Gypsy

File:Francisco Iturrino Two Gypsies.jpg

http://www.3quarksdaily.com/3quarksdaily/2014/04/dont-call-a-gypsy-a-gypsy.html

 

The Wikipedia article on the Romani.

On Crimea’s Muslim Tartars

Photo of a Crimean Tatar man crying during a rally.

An excellent article on the history of the Tartars and their plight today.

Abandoning Ukraine

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Over the last few days, a disheartening consensus has emerged among self-styled Western progressives that there is little or nothing in the current Ukrainian revolution that merits solidarity. This mixture of wariness and indifference was already evident in the build-up to the bloody crackdown in Kyiv on February 18, but it has been stoked and heightened considerably since then by the clear and central role played in unfolding events by the Ukrainian extreme right, particularly by members of the so-called Right Sector and by the somewhat less extremist group Svoboda….

 

This article seems to have been written right before Yanukovych’s oust, but I still find it quite relevant.  Take a look.

See my last commentary on Ukraine way back on February 1st.

Malcolm X died today

(If you’re going to read this, take the time to briefly touch the videos and links- it’s the only way things will make sense, I promise.)

Malcolm X was killed today – 49 years ago at 3:30 p.m. on 165th Street, New York City. He was shot, in front of his family, in front of his friends, in front of over 600 earnest listeners at the Audubon Ballroom. He knew it was going to happen that day, he really did, but he went with it anyway. He was prepared to die.

Malcolm died calling for a “black revolution”.  He distinguished this from a “Negro revolution”, which represented civil rights in the United States. He prophesied a Marx-esque global overturn in society. He wanted “Negroes” to join in on the global revolution that “is world-wide in scope and in nature. The black revolution is sweeping Asia, sweeping Africa, is rearing its head in Latin America. The Cuban Revolution…. They overturned the system”. He foresaw a world of egalitarianism for all people, white, “black, brown, red, or yellow”. At the time of his death, he didn’t see whites as evil at all – he met people “whose eyes were the bluest of blue, whose hair was the blondest of blond, and whose skin was the whitest of white” that he could call brothers (Malcolm X, “A Message to the Grassroots”). And as he called for his global revolution in 1965, for his new vision of equality, he was shot and killed. Don’t listen to any media that tells you otherwise – “read the books” (Maya Angelou, recalling Malcolm).

“It is incorrect to classify the revolt of the Negro as simply a racial conflict of Black against White, or as a purely American problem. Rather, we are today seeing a global rebellion of the oppressed against the oppressor, the exploited against the exploiter.” – Malcolm X

Of course, that’s not the whole story. Malcolm was never a mainstream civil rights leader, and never wanted to be and chose not to be. The most mainstream he got was on his deathbed, still calling for a global revolution. He was not a Martin Luther King, who he called a member of the black bourgeoisie. He didn’t have a white picket fence and didn’t work with white liberals on a daily basis. He was a field negroe, a common man.  He was a radical compared to the other great civil rights leaders of his time (this is not to say he didn’t work with the mainstream; he personally knew James Baldwin, Bayard Rustin, Maya Angelou, Sydney Poitier, Adam Clayton Powell, and Shirley Du Bois).

What differentiated Malcolm X from the others was his conception of African Americans. He never saw himself as an American, he saw himself and other blacks as Afro-Americans; namely, people robbed from their ancestral past in Africa, forced to live in America. He called on others to remember that past, to remember that legacy. Because of this honorary sense of African Americans, he “was the only leader out there that taught black people to be proud of being black” (Robert Haggins, Malcolm’s photographer.)

“So we are all black people, so-called Negroes, second-class citizens, ex-slaves. You are nothing but a [sic] ex-slave. You don’t like to be told that. But what else are you? You are ex-slaves. You didn’t come here on the “Mayflower.” You came here on a slave ship — in chains, like a horse, or a cow, or a chicken. And you were brought here by the people who came here on the “Mayflower.” You were brought here by the so-called Pilgrims, or Founding Fathers. They were the ones who brought you here.” – Malcolm X, “A Message to the Grassroots”

A friend asked me once, “What did Malcolm X actually DO?” The simple answer is nothing; he didn’t organize unions like Phillip Randolph, marches like Bayard Rustin, or sit-ins like Martin Luther King. Malcolm X didn’t deal with unjust laws or racial separation per se. He dealt with changing minds and perceptions. In the black South, whether it was Birmingham or Atlanta, the largest issue was Jim Crow: bus segregation, school segregation, church segregation. Malcolm X didn’t have to deal with laws in Detroit, New York City, or Omaha. He dealt with urban ghettos and cyclical poverty. He dealt with people who were lost as to their purpose of living, as to their identity, as to their future. He taught his listeners to love themselves, to love their heritage, to love the world around them. He taught them to identify with oppression everywhere, and to fight for justice anywhere. He didn’t teach full integration – he saw that as whitewash. Instead, he taught embracement, nationalism, self-confidence.

Most civil rights leaders didn’t identify with the urban North. In Boston, Lansing, and Baltimore, it wasn’t about being at the back of the bus, but about being at the bottom of society. It was about institutional racism.

Racism is both overt and covert. It takes two, closely related forms: individual whites acting against individual blacks, and acts by the total white community against the black community. We call these individual racism and institutional racism. The first consists of overt acts by individuals, which cause death, injury or the violent destruction of property. This type can be recorded by television cameras; it can frequently be observed in the process of commission. The second type is less overt, far more subtle, less identifiable in terms of specific individuals committing the acts. But it is no less destructive of human life. The second type originates in the operation of established and respected forces in the society, and thus receives far less public condemnation than the first type. When white terrorists bomb a black church and kill five black children, that is an act of individual racism, widely deplored by most segments of the society. But when in that same city – Birmingham, Alabama – five hundred black babies die each year because of the lack of proper food, shelter and medical facilities, and thousands more are destroyed and maimed physically, emotionally and intellectually because of conditions of poverty and discrimination in the black community, that is a function of institutional racism. When a black family moves into a home in a white neighborhood and is stoned, burned or routed out, they are victims of an overt act of individual racism which many people will condemn – at least in words. But it is institutional racism that keeps black people locked in dilapidated slum tenements, subject to the daily prey of exploitative slumlords, merchants, loan sharks and discriminatory real estate agents. The society either pretends it does not know of this latter situation, or is in fact incapable of doing anything meaningful about it.” —Stokely Carmichael, Honorary Prime Minister of the Black Panther Party.

Institutional racism consisted but runs far deeper than Jim Crow. It penetrated the hearts and minds of those in power – whites. It affected Malcolm’s people in the ghetto and on the bus and everywhere in between. Laws don’t change minds, words change minds. Malcolm dealt with minds, perceptions, and identity. That needs to be clear.

“But as racism leads America up the suicide path, I do believe, from the experiences that I have had with them, that the whites of the younger generation, in the colleges and universities, will see the handwriting on the walls and many of them will turn to the spiritual path of truth – the only way left to America to ward off the disaster that racism inevitably must lead to.” – Malcolm X, “Letter from Mecca”

He did this as a performer. Whether it was as a porter on trains that ran in and out of Detroit or on the podium at Oxford University, he was the same Detroit Red, wooing and playing to the audience. He was there to change minds and to get others to act. He wasn’t there for laws, he was there for minds. He wasn’t there to desegregate schools or buses; he was there to remove the mentality of racism and to create the identity of black conscious. He saw politics as a tool for the benefit the black community, not politics as a tool in itself. His speeches reflected just that. He didn’t DO anything, because he didn’t see DOING as enough. Putting black people in white schools won’t end racism, only changing the minds of whites would. And that was only the first step – because there was a revolution coming for a new global order (let’s be clear, time tells us he was dead wrong on this prophecy).

“We must understand the politics of our community…we must know what role politics play in our lives” — Malcolm X, “Ballot or the Bullet”

Malcolm performed to all sorts of audiences across the world. He met with kings, dictators, and presidents across Africa, with communists in South America, with leaders in Europe, and with lay blacks back home. It was for this reason among others that he is so difficult to understand – at one speech he’d call for integration and capitalism, on the other for segregation and communism. On one stage he’s a Muslim whose faith guides his actions, on another stage he’s a Muslim who has no intention of letting people know. The factor of time causes just as much confusion – he began in Black supremacy and died almost mainstream. To discuss all of that requires a whole book. Here, I am trying to highlight the most powerful continuities of Ossie Davis‘s “black shining prince”.

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When looking at this man in his totality, agreeing with him or not, we find a powerful lesson. We see the story of someone who thought big – civil rights wasn’t just about America. We see the story of someone who never compromised his values, yet was always willing to compromise his style. We find someone who thought deep, to the real issues of the time. And we find someone who taught me to be myself and to love myself and try to be no other than myself. Manning Marable tells it best: “Of the figures who tower over twentieth century American history, perhaps none is more complex, more multifaceted and controversial, than Malcolm X” (Malcolm X: A life of reinvention).

If Kerry Wants To Make Peace in the Middle East…

…He Should Just Put God In Charge…

The real problem is symbolic. Jerusalem, beyond being a real place, is a very symbolic place. It’s too symbolic for its own good, perhaps, but it is what it is. Because of this, neither side can countenance concessions in matters of principle. Even were Israeli or Palestinian leaders to consider such a thing, rabid partisans of one side or another—probably both—would crucify them for all their trouble. (I use the word advisedly.) It’s just not possible to divide a mystical whole. Things or places with the aura of eternity floating about them somehow defy the law of integers.

The two sides—and others with an interest like Hashemite Jordan, Saudi Arabia, and Christians of various descriptions—can far more easily swallow a no-national-sovereignty solution. Human nature being what it is, it’s much easier to accept not having something if your rival doesn’t have it either…

A quick post on Valentine’s Day

Because I have to.

Facebook has found a trend in timeline posts to relationships.

http://www.theatlantic.com/technology/archive/2014/02/when-you-fall-in-love-this-is-what-facebook-sees/283865/

Sorry for being late, but there were more important things to post yesterday – like ignorance.

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Dear America, I Saw You Naked!

Confessions of an ex-TSA Agent.

This article is phenomenal – the work of a former TSA (Transportation Security Administration ) agent from Chicago O’Hare airport. The guy who scans your bags and operates the machines.

I was fascinated at his dismissal of Full Body Scanners (which I once defended), at his accusation that ‘random checks” were not just selective but political (random checks for Algerians but not Saudi Arabians), at his dare to say that most TSA agents hate their jobs, and at the lengths he goes to say agents violate the privacy of women. He has a blog, too (a WordPress!), called Taking Sense Away.  He is also writing a novel.  Check it all out.

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Your car? My car!

Reuters/Tony Gentile

When is enough, enough?

http://rt.com/news/remote-car-disable-eu-413/

The EU is considering mandatorily equipping of all cars sold in the union with devices, which would allow police to remotely disable engines, according to leaked documents….