Wednesday, October 20, 2010

Christine O'Donnell, the Separations of Powers Doctrine, and Nino Scalia

With the stubbornness of a child, Christine O'Donnell appears to lack the capacity to apply reason and logic to issues of constitutional law. This week O'Donnell asked her Democratic opponent for Delaware's Senate Seat where in the Constitution can separation of church and state be found.

Ms. O'Donnell's timing couldn't have been worse. The debate was held at the Widener School of Law. When O'Donnell asked Chris Coons the fatal question the audience responded with laughter and dismay.

Christine O'Donnell comes from that silly school of constitutional interpretation that says if those exact specific words are not found in the actual text, then the concept is not constitutionally sound. We heard this before, and given the opportunity Associate Justice Antonin "Nino" Scalia will affirm this error. Scalia is of the school that since the actual word "privacy" is not found in the Constitution there is no right to privacy.

O'Donnell is correct those words are not found in the Constitution. What is found in the Constitution is the First Amendment. The First Amendment provides two important clauses regarding religion. First is the Establishment Clause, which prohibits the federal government from establishing religion. Second is the Free Exercise Clause, which prohibits the government from interfering with a person's free exercise of their religion.

It is generally understood and accepted that the First Amendment's Establishment Clause provides the underpinnings of the doctrine of Separation of Church and State. It is hardly conceivable that the Founding Fathers could have anticipated the actual language which would come to frame the Establishment Clause.

Where then did "Separation of Church and State" come into being? We can thank the good folk of the Danbury, Connecticut Baptist Association for their letter to the newly inaugurated President Thomas Jefferson. These Baptists were concerned about whether they were able to practice their religious beliefs as inalienable rights or as favors granted by the state.

President Jefferson replied, in pertinent part:

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties." (Emphasis Added).

Jefferson succinctly summarized the tension between the Establishment Clause and the Free Exercise Clause as a wall of separation. If Christine O'Donnell cannot wrap her mind around this important construct of American liberty then she does not have the smarts to provide the independent judgment necessary to be a United States Senator.

Most of the case law dealing with the Establishment Clause is recent. There appears only one older case. In Bradfield v. Roberts, (1899), the federal government funded a hospital for the District of Columbia. The contract for the hospital was granted to a Roman Catholic religious order of the "Sisters of Charity". The Supreme Court, in an opinion by Associate Justice Rufus Peckham, said that there was a secular purpose in establishing the hospital.

The fact that the hospital was being run by nuns was only an incidental factor, the purpose of the hospital was to provide health care, rather than establish Roman Catholicism as our religion. That institution, Providence Hospital, continues in operation today as part of Ascension Health, the nation's largest Catholic and nonprofit health system.

In 1947 the Supreme Court opened the modern line of Establishment Clause cases with Everson v. Board of Education. In that case a New Jersey statute authorized parents of parochial school students to be reimbursed for the expenses of school bus fees. Associate Justice Hugo Black said Jefferson got it correct and that the Establishment Clause was intended to erect a wall of separation between church and state. Neither the state or federal government, said Black, could establish a religion. The New Jersey law was upheld because the law applied to all citizens equally, the secular purpose of the law was to provide the safe transportation of children, and the payments went to the parents of the children instead of to the Church.

A case which did not reach the United States Supreme Court was heard by New Mexico's courts and is known as the Dixon School Case, see Zellers v. Huff, 55 N.M. 501, 236 P.2d 949 (1951). Here the local public schools were abolished by the local school board which in turn recognized the Roman Catholic parochial school system as the public schools. Protestant parents protested to no avail and brought suit. The trial judge ruled the state had violated the separation of church and state doctrine. The New Mexico Supreme Court affirmed, and neither party sought further relief from the federal courts.

The Scalia school of constitutional interpretation wants bright lines and abhors the shadows where the jurist must rely on reasoned analysis to provide consistence, coherence, and clarity to the brick and mortar upon which stare decisis is built by case law. These folks want a test to say all ilk and manner of religion sponsored in any way shape or form by government is wrong, or the doctrine of separation of church and state is a fraud.

There is a test. It was developed by a unanimous Supreme Court in the case of Lemon v. Kurtzman. The Lemon Test has three prongs. 1) There must be a secular legislative purpose supporting the government's actions. 2) The primary effect of the governmental action must to neither advance or inhibit religious activity. 3) No excessive governmental entanglements with religion can result.

Chief Justice Warren Burger wrote the opinion in Lemon v. Kurtzman. In 1968 Pennsylvania passed a law reimbursing religious (typically Roman Catholic) schools for the salaries of teachers who taught secular subject matter, books and supplies for non-religious schools. The net result was that parochial schools were being subsidized by the state in contravention of the Establishment Clause. Without the reimbursements the parochial schools would not be able to provide for these teachers, books, and materials. Associate Justice William Douglas offers a good brief history of recent Establishment Clause cases in his concurrence.

Scalia doesn't like the Lemon Test. He said so in the case of Lambs Chapel and John Stiegerwald v. Center Moriches Union School District. Note: the case was decided on the basis of the First Amendment's Free Speech clause using the same test employed for Separation of State cases. A New York statute permitted local school districts to make their facilities available to community groups after-hours. Moriches Union allowed community groups discussing family issues to use their facilities after-hours. Enter a church armed with the video lectures of noted Christian Psychologist Dr. James Dobson. I am not a huge fan of Dr. Dobson but I am a huge fan of the concept that more speech is better than less speech. Since the facility was available to persons discussing family values from a non-Christian perspective it is impermissible to deny Christians the opportunity to use the facility because of their theological perspective.

The majority opinion was written by Associate Justice Bryon White. Associate Justice Scalia wrote a concurring opinion in which he said:

"As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District."
"I cannot join for yet another reason: the Court's statement that the proposed use of the school's facilities is constitutional because (among other things) it would not signal endorsement of religion in general. What a strange notion, that a Constitution which itself gives "religion in general" preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general. The Attorney General of New York not only agrees with that strange notion, he has an explanation for it: "Religious advocacy," he writes, "serves the community only in the eyes of its adherents and yields a benefit only to those who already believe." That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the famous Northwest Territory Ordinance of 1789, Article III of which provides, "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." 1 Stat. 52 . Unsurprisingly, then, indifference to "religion in general" is not what our cases, both old and recent, demand. See, e. g., Zorach v. Clauson, 343 U.S. 306, 313-314 (1952) ("When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions"); Walz v. Tax Comm'n of New York City, 397 U.S. 664 (1970) (upholding property tax exemption for church property); Lynch, 465 U. S., at 673 (the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions . . . . Anything less would require the `callous indifference' we have said was never intended" (citations omitted)); ("our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action"); Marsh, supra; Presiding Bishop, supra (exemption for religious organizations from certain provisions of Civil Rights Act)."
Nino Scalia, Christine O'Donnell, and those like them are all for the Free Exercise Clause being rigorously enforced, as it should be. They want to minimize the Establishment Clause into the isolated incident where the Congress says that a particular sect, denomination, religion, or cult is the official religion of these United States. That de minimis view of the Establishment Clause does violence to the tension President Jefferson recognized between the two clauses and reminds me of a Rogers and Hammerstein lyric from the musical Oklahoma.

The song is called All Er Nothin: With me it's all er nuthin'. Is it all er nuthin' with you? It cain't be in between It cain't be now and then" With Scalia and O'Donnell no half and half decision will do.

How simple the world would be if we insisted the tough issues be pretended away.

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