Friday, June 8, 2007

Free speech alert

Note to readers: Alert reader Bill Lawrence made a very enlightening comment regarding this post, which significantly changes my personal opinion. I agree with him that, given the case's specifics, the 9th Circuirt Court of Appeals made the right decision. However, I am leaving the original post up, but please do not read this post without also reading Bill's great comment. Thanks.
A Contra Costa County religious group wanted to use a public library meeting room — which is open to public groups — for its whorship services. They were denied in a ruling by the 9th Circuit Court of Appeals

I'm in favor of a strong, neigh impenetrable, wall between church and state (thank you for coining the phrase, Thomas Jefferson). I guess the court ruled that the group praying in a public library was a violation of the establishment clause of the First Amendment.

But a lawyer representing this religious group has a point. This ruling essentially treats religious speech as "second-class speech." That's a troubling notion.

Religious worship is protected from government intrustion by the First Amendment, and the government is prevented from establishing any religion (often interpreted to mean that the government should not support or favor religion over non-religion, a position I find beneficial to both the country and faith community).

However, as long as this public meeting room is open to groups of all faiths, I see no reason why this type of speech and worship should not be allowed. It isn't sponsored by the library, and the library (a public, government institution) doesn't seem to be guilty of favoring religion over non-religion simply by allowing the group to use its facilities.

I say, give free speech its broadest definition. Let them pray. And then let the atheists have their own meeting directly after.


Jack Mobley said...

You thanked Thomas Jefferson for the phrase and concept of separation of church and state. He did indeed come up with that idea but it has been perverted from its original intent. He orginally wrote those words to a Bible Society who was afraid of governmental restrictions on their freedoms to practise their faith, Christianity, in an open way without restrictions. Jefferson said he favored a separation of church and state so that the state could not interfer in their worship wherever they were. In other words that their practise of religion would be protected from government not government being protected from their religion.

Bill Lawrence said...

Based on your presentation of the case, I tended to agree with the conclusion you stated, that the 9th Circuit Court and gone overboard with this decision.

However, after reviewing the findings and decision, the 9th Circuit Court made the correct ruling, although I have no doubt that they will be castigated by zealots more interested in dogma than in facts.

For some time, Contra Costa County has had a policy allowing all community groups, including religious organizations, to use public rooms for educational and informational purposes, but not for worship services. This applied to Christians, Jews, Quakers, Mormons, Muslims, Hindus, Sikhs, Zorastrians, Druids, Wiccans, and all other religious denominations. While maintaining the distance between state and religion, this policy also prevents a group from taking over a public space and presenting it as the home of a religious entity.

After Faith Center, the plantiff in the case, had broken the rules, they were told they could not longer use the space. Faith Center then sued, claiming discrimination, although organizational representatives admitted in lower court proceedings that they had, in fact, conducted worship services.

The 9th Circuit's ruling does not prevent any religious group from using the space to educate and inform people about their beliefs. It simply upholds Contra County's well considered policy that prevents any religious group from using public facilities for worship services. If religious organizations want to hold services, they should find their own space.

The 9th Circuit got it right this time.

Erdos56 said...

Thanks to Bill for the synopsis on the details of the county policy and relationship to the ruling.

There is an interesting divide at the level of the Supremes on this issue. For instance, Scalia held a very firm position that laws that were not formulated to either directly or indirectly interfere with religious practice take precedence over the Free Exercise Clause. The classic example is Laotians clubbing dogs to death for good luck runs afoul of anti-cruelty laws that were not formulated to persecute Laotians. That's a fairly simple test.

The difficulty comes from Congressional meddling in formulating laws like RFRA(Religious Freedom Restoration Act) which has been largely used thusfar to allow importation of religious drugs like huasca tea, and that require the government to demonstrate a compelling interest before interfering with religious practice.

So this could go to the Supremes and be argued under RFRA in that the group might say that just because the ban is neutral towards any specific religious group, the government doesn't really have a compelling reason to ban their use of the facilities for prayer. After all, anyone could pray there and no one would assume that the government endorsed their prayer meetings.

I find RFRA worrisome. For huasca or peyote or whatnot, Congress could always have created an exception to the Controlled Substances Act for specific religious groups, but instead they interfered with Lemon Test jurisprudence through legislating the way the courts decide. It seems to fly in the face of separation of powers, but the Supremes have decided using RFRA now, and have not had to work on the Constitutionality of RFRA itself...yet.

Erdos56 said...

For Jack Mobley: Historically accurate concerning Danbury Baptists letter, yet we are still left with what it means when you claim that government is not necessarily protected from people's religion? I don't see any way that the Establishment Clause can be interpreted to allow public schools to require religious indoctrination of one form or another, for instance. And they don't, but students can pray their little hearts out as long as it doesn't interfere with class activities. As can teachers, as long as they don't proselytize from within their roles as public employees.

So we either have a strong wall of separation that protects the Danbury Baptists from the Druids by neutering government about religious matters, or we damage the Establishment Clause.

There is a lack of consideration of consequences in my opinion about what Jefferson's statement to the Danbury Baptists really means operationally when people argue that "wall of separation" doesn't mean strong separation. No one interprets it to mean that Bush can't say "God Bless America", for instance.

Anonymous said...

The 9th Circuit is the most overturned Court, which shows that
higher courts say they are ruling
counter to the Constitution.
also the so called "Wall of Separation" is not in the Constitution. only the Establishment clause counts, and as others have said, that lays out that the Govt. will not "establish"
a National Religion.
if the Govt. is guilty of favoring
one religion over is
Secular Humanism that is the "Established" religion of This nation. and Churches rent rooms from Public schools on Sundays for church services..and that should also apply to a room in the library
that is made available to the public.

Jon Mendelson said...

I would tend to agree with the last comment, except that this Library and the encompassing municipality has a law banning ANY religious-affiliated group (including an atheistic group, I would suspect) from using space in the library for WORSHIP SERVICES. This, as Bill Lawrence said above, is so that no religious group can claim the PUBLIC space is its primary worship center. If a group could claim so, it would certainly appear that the government was supporting said religious group, which, per establishment clause, cannot Constitutionally be the case. So the Ninth Circuit ruled to uphold the law as well as the Constitution. And if a higher court overturns it, which is unlikely (save for some judicial activism from conservative justices going against the established court traditions of the past 60 years).

Erdos56 said...

I strongly disagree with Anonymous in the following sense: the idea that individuals are not "correctly" interpreting the Constitution makes no sense. Every Justice (Supreme or Appellate) combines stare decisis (prior decisions) with reasoning and legal principles to formulate an interpretation of the Constitution. There is no such thing as an "originalist" interpretation. Even Scalia has said as much, pointing out the the 1st Amendment notion of Freedom of Speech, taken completely literally, would not apply to written text or blogs if interpreted to only mean "speech" in the 1787 variety.

So we are left with the imperfect process that is definitively secular in nature, with educated people with all their flaws and prejudices trying to balance Establishment Clause against Free Exercise Clause with Free Speech riding shotgun. That is not activism of any form, just what the Founders intended.