Friday, November 21, 2008

Indianapolis Star Wants "Clear Rules" Involving Religion and Government? Yeah, Good Luck With That

The Indianapolis Star this morning publishes an editorial discussing many of the recent cases involving religion in the public arena and suggests we need "clear rules" so it is clear what is allowed and what is now allowed. The fact though the law in most instances is a bright shade of gray, not the black and white the Star editors would prefer.

A quick primary on the 1st Amendment religion clauses. First, there are two religion clauses, the Establishment Clause and the Free Exercise of Religion Clause. Neither when they were passed even applied to states. The Bill of Rights initially only applied to limit the authority of the national government. It wasn't until the 14th Amendment, which was ratified in 1896, and the resulting case by case "incorporation" of the Bill of Rights, that States (and local governments) became subject to the those amendments. It was not until the Everson v. Board of Education case in 1947 that the Supreme Court got around to applying the Establishment Clause to the states.

I don't think there is any doubt that those who were behind the Establishment Clause did not intend for its broad application the court interpreted it to mean in Everson.. They were concerned about the "establishment" of an official religion in the United States as had been the case in England. They did not want the various christian religions fighting to establish their religion own religion as the dominant one.

In Everson though the court expanded the meaning of the Establishment Clause to mean that government cannot be seen as "endorsing" or "promoting" one religion over another, or religion over non-religion. The Free Exercise Clause meanwhile has been interpreted to say that government must "accommodate" religion even in the public sphere.

So under those two interepretations government has to tread a middle ground. Government has to allow religion and religious activity to take place, even in the public sphere; goernment just can't be seen as endorsing or promoting that religious activity.

Sometimes in the zeal to try to avoid "promoting" or "endorsing" religion, a government entity will foolishly adopt rules that do not accommodate religious practices. For example, the State of Indiana cannot adopt a policy that says that its employees can't wear crosses or crucifixes around their neck. That is individual expression of one's religious faith. It would be a reach to say that government allowing an individual to wear a religious symboil is government endorsement of that individual's faith.

That brings me to the "BE GODS" license plate prohibited by the new BMV policy. While the case law can lead to a lot of "gray area" situations, I don't think that is one of them. The fact an individual personally chooses a license plate that might have some religious meaning isn notgovernment endorsement of religion. Further, the BMV policy appears to be in violation of the Free Exercise Clause that says government must "accommodate" religion. Just as the State can't tell its employees they can't wear crosses in public, the BMV should not have a policy that prevents people from choosing a plate that has a combination of letters with significant meaning. I don't think the "BE GODS" controversy is a close call. The State would be wise to consult with a good constitutional attorney before spending money in court defending it. I think in the long run it is a loser case for the BMV and the State of Indiana.

The "In God We Trust" license plates is a much closer constitutional question. There I think the argument is much stronger that the State is "endorsing" or "promoting" the plates by having an official design for the plate even though people have the right to choose it personally. (I should emphasize that I'm merely stating my legal opinion regarding the policy based on current court precedents, not my personal opinion of what the law should be.) I don't think though the lawsuit though focused on the constitutional issue so much as state law claims, including the fact that individuals were not required to shell a fee for the IGWT plates like people have to with other speciality plates.

I have already commented on the legislative prayer case. The challenge was lost on appeal due to standing and the merits were not reached. I highly doubt though the decision (which specifically prohibited references to "Jesus" during prayer) would have survived appeal on the merits though. While I think the prayers went overboard certainly and legislative leaders would have been wise to reign them in, the fact is we have had prayer in legislative bodies for 220 years, including the constitutional convention. For a court to start picking and choosing which religious prophets cannot be referenced during a legislative prayer violates a fundamental principle that the rules, whatever they are, must apply across the board equally. Further. I thought the decision violates the separation of powers. Legislatures cannot tell courts how they are going to conduct business any more than courts can tell legislatures how they are going to conduct their business.

Moving on to the Southport City Council meeting, there they adopted a "moment of silence" to replace a prayer. That was their choice. While I do not think the prayer before the meeting violated the Constitution, there is nothing that requires the council or the mayor to continue the prayer tradition. The protester did not have the right to interrupt the meeting. That sort of reminds me of people who think they have a right to "shout down" a speaker on a college campus they disagree with. No, that protester's free speech rights do not include the right to prevent someone else from speaking.

Those are the decisions handed down this morning by Judge Ogden.

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