The Pledge of Impedance

 

It's one thing for a government to withhold information from its citizens, regardless of any need to do so. It is another to require that members of the media pledge to assist government in this dissimulation.

This demand for an agreement to join government in its efforts to impede communication of government conduct to the public is particularly unworthy of a nation founded on a Constitution which includes the First Amendment.  The impropriety of concealment in that case becomes even more loathsome as it includes an effort to restrict freedom of speech and "of the press" and force the media to join in a conspiracy to do so.

But it seems that the regime now in power is determined to violate the First Amendment in this and other ways, seemingly to prevent criticism if not for other, more sinister, reasons.  It also seems that Congress is either content to see this to take place or too cowed to do anything about it. 

Whether the Supreme, or Subordinate, Court will tolerate this remains to be seen.  The outlook is bleak, though, as some of the Justices appear to believe themselves to be beyond criticism or at least strongly resent it, and so may sympathize with the regime. It certainly seems inclined to favor the regime, judging from what it's done in the shadows of the Shadow Docket.

Kneeling, Standing and the Law

 

I've commented before in this blog regarding the Supreme Court's decision in the Great Pray for Football case,  Kennedy v. Bremerton School District.  That was the case in which an assistant high school football coach claimed his right to freely exercise his religion was violated by a school district because it sought to restrict his ostentatious prayer-sessions after games, which took place at the 50 yard line (see the above copy of an exhibit in the case).  His religion, it seems, provides that such prayers be made.

After attempts to accommodate his desire to pray alone and silently, while in public and with others (as shown above), he was terminated.   A majority of the Supreme Court agreed with him that his First Amendment rights were violated.

As a result, he got his job back.  He has been residing in Florida for three years, however, quite a distance from Bremerton, which is in the State of Washington.  Having been reinstated, he resigned the position after a single game.  He made some vague claims in connection with the resignation regarding his feeling he was not getting from the school district what was justly due him given his status and his victory at the Supreme Court.  It apparently only took a single game for him to believe that to be the case.  He also acknowledged, though, that he's been living in Florida and has some sick relations there, and wanted to be there with his family.  His coaching position was only part-time, and he quit a full-time job at a Bremerton shipyard to go to Florida.

Since his employment with the school district, he has been photographed in various places, including before the Supreme Court building in D.C., usually kneeling.  He apparently kneels, and presumably prays when doing so, with considerable frequency and in the presence of photographers.  He's appeared in various media and talk shows, and is something of a celebrity.  He's summoned to speak at various conservative and religious events.  He's written a book.  A movie about him is said to be in the works.  He has his own Website.  

I think it's understandable, then, that some suspect his desire to regain his position as assistant high school football coach was never the reason for his sojourn in the legal system, and indeed that he was never interested in doing so.  One even might suspect that he conducted himself in such a manner that the school district felt it had no option but to terminate him, as his prayers became more and more of a spectacle.  In other words, that the school district was goaded into action.  In even more other words, that there was a deliberate attempt to obtain a Supreme Court holding on the issue.

One might also suspect that the Great No-Gay Wedding Website case, 303 Creative LLC v. Elenis, was similarly brought to solve what wasn't actually experienced as a problem given the fact that the person who supposedly sought to have a website devoted to a gay wedding denies having done so.  The tendency of the Supreme Court, or of any court, to decide questions which do not actually arise is troubling.

It's been the rule for a long time that a person who brings a legal action must have what's called "standing" to do so.   Generally speaking, a person has standing when the person has sustained or in the circumstances very likely will sustain an injury for which a legal remedy is available.  Legal action commenced merely to prove a point or address issues which may or may not arise, but haven't yet arisen, are to be disregarded by courts, which presumably have other things to do for people who are actually involved in existing disputes and have sustained actual damages.

The poet Wallace Stevens wrote that the imagination loses vitality as it ceases to adhere to the real.  It's the same with the law.  Where there is no real dispute to be resolved, no real circumstances to be addressed, legal decisions become detached from real disputes and real people.  They're mere abstractions.  They seek to address imagined realities.  They lack context.  They're speculations on what might or should be the case.  They're subjective declarations on what should be the case should something actually be the case.  Because they don't "adhere to the real" they're more likely to reflect the individual desires and preferences of those who make the decisions.  Also, it makes it difficult to assess when a legal decision would apply in the case of an actual injury or dispute, which can be very fact-dependent and specific.

It's to be hoped that the Supreme Court Justices will curb their apparent desire to proclaim what the law should be at least enough to require that a real controversy exist before doing so.  Otherwise, they may become political agents, and even unelected legislators, rather than judges.  There was a time when conservatives feared that was taking place.  Perhaps no longer.

Let Us Pay For Them To Pray

In an opinion mercifully lacking in self-serving references to antiquated opinions of jurists dead for centuries, the Supreme Court of our Great Quasi-Republic has decreed that a law of the State of Maine in force since 1981 is unconstitutional.  The law provided that public funds (taxes) may, in certain circumstances (primarily where public schools are unavailable), be used to pay tuition to private schools of a parent's choice, provided the schools are nonsectarian.  A "sectarian" school is considered to be one associated with a particular religion or belief system, which teaches regular academic subjects but also promotes a particular religion or belief system or teaches subjects taught from the standpoint of that religion or belief system.

In Carson v. Maine, the Supremes have decreed that this cannot be, i.e. that if public funds are to be used in support of private schools, they must be used to support schools which promote a particular religion or belief system.  

The majority of the Court notes that this doesn't mean that public funds must be used to promote a particular religion or belief.   At this time (not yet?) the Court makes no such decision.  The majority points out that Maine may avoid this result by providing an adequate number of public schools.  Presumably, it may also do so by ceasing the program by which public funds may be used to pay tuition to private schools where there are no public schools.  If public schools are not available, it seems, it is constitutionally more appropriate that schools promoting a religion be paid public funds if public funds are used to promote education.  Constitutionally speaking, better no education at all than no religious education, saith the Supremes.

The majority makes an interesting distinction between past precedents against using public funds to benefit religions and its decision in this case.  It states that previous decisions prohibiting the use of public funds to support "church leaders" or education of religious clergy do not apply in this case.  In this fashion, a religious belief--a religion--may be supported by public funds, but particular adherents of a religious belief may not.  What, though, is the basis for this distinction?  Why is it significant?

It isn't clear to me that this is addressed by the Supremes.  It is, instead, merely a difference in circumstances relied on to avoid the need to acknowledge prior decisions as binding.  It's precedent-avoidance, of a kind indulged in by lawyers whenever they want to ignore the kind of reasoning employed in the previous case, and its holding.  

One wonders if the intent behind the doctrine of separation of church and state was to merely prevent the direct funneling of public funds to "church leaders."  Or if it was the intent that public funds be available to religious believers who are not religious clergy, but nonetheless to further the purposes of a religion.  In what sense is one or the other more likely to lead to or constitute the establishment of a religion?  In what sense is a person's ability to practice his or her religion impaired if he's unable to use public funds to pay the tuition of his children needed for them to attend a school promoting his or her religion?

I'm a cynical soul, I'll admit.  I think the number of citizens of U.S.A. who actually practice their religion, rather than merely avow it, is relatively small in comparison with its population.  Diogenes the Dog searched for an honest man. I think the search for a true Christian (for example) would be no more successful.  Practicing a religion in these times consists of simply following established rituals and ceremonies.  Perhaps that's always been the case.

But let's say that engaging in those rituals and ceremonies is practicing religion.  I doubt attending a secondary school will constitute such practice.

I, for one, would oppose the use of public funds to pay the tuition of any private school.  So the fate of this particular law is a matter of indifference to me.  The state may have an interest in an educated citizenry, up to a point, meriting expenditure of taxes received, but I don't think it can be maintained it has an interest in the promotion of any particular religious faith.

And that would seem to me to be the real question to be addressed.  Should, or may, public funds be used to pay the tuition of a Christian, or Muslim, or Hindu, or Jewish high school?  Perhaps Scientology has high schools also--I don't know.  I would say no, regardless of the religious faith being promoted.   It appears the majority of the Supreme Court would say yes.

 

Free Speech and the Suspension of Judgment

Several times in this blog o' mine I've noted the confusion which often surrounds pronouncements and platitudes regarding what we enjoy calling free speech.  Here in our Glorious Union, it's claimed that our right to free speech is grounded in the First Amendment to the Constitution, which states that Congress shall make no law abridging the freedom of speech.  Strictly speaking, of course, no right is created thereby; it's a prohibition.  It doesn't say everyone has a right to free speech.  It says only that Congress may not adopt laws of a particular kind.  

Although many feel that the First Amendment provides that nobody may restrict our freedom of speech, it very clearly refers only to Congress.  Via the Fourteenth Amendment and case law, it's been extended to apply to actions by state and local as well as the federal government, but it doesn't relate to the actions of any person or entity which isn't a representative or agency of a government.  

One can if one wishes claim there's a natural or God-given right to free speech, but it's difficult to rely on such a claim to prevent someone from restricting our speech.  If we wait for nature or God to punish those who make us shut up or prevent them from doing so, it's more than likely that we'll be unable to speak when that happens, if that happens.

There's a kind of romance associated with free speech.  The picture associated with this post is of someone speaking at Bughouse Square in Chicago, across from the Newberry Library, where I labored as a student for a time (studying J.S. Mill and the Philosophical Radicals, interestingly enough).  The speaker is speaking from atop a box, possibly a soapbox as would be traditional.  The purpose of the box is to make the speaker visible above the crowd which (it's hoped) would be listening intently to what's being said.  This is an image which is conjured up from time to time in reverence to free speech--the common, or perhaps uncommon, person delivering views in public.

It's an attractive image, as is the idea of free speech itself.  Everyone should be able to speak their mind without fear of reprisal.  But in these sad times the tendency is more and more to claim that that everyone should be able to speak their mind no matter what they say and without objection or limitation.  Reprisal isn't required to violate free speech, according to some of those who self-interestedly champion free speech these days.  Vocal or active disagreement may violate the right to free speech, or a boycott may do so, even when by private persons.  Even shaming may do that, or not being allowed to say something in a particular (private) place or on privately owned media.

This is called censorship, and when it is called that those who make the claim also do so as a result of their confusion, or ignorance regarding the meaning of the word.  A censor is a government official.  Censorship is an official action, not a private one.

Even the First Amendment and the legal right it creates (to the extent there is a "right") is limited.  The government is not prohibited from restricting speech in certain circumstances.  Since the First Amendment doesn't apply to private conduct, it makes sense that a private person or entity would be able to restrict speech to a much greater extent than the government particularly where the speech is taking place in property the private person owns.

This shouldn't be surprising.  It should be even less surprising that certain speech is unworthy of protection beyond legal protection, and that no "right" to that speech exists.  People have no more right to indulge in malicious, stupid, ignorant, bigoted or hateful speech than they have a right to be malicious, stupid, ignorant, bigoted or hateful people.  Other people are perfectly free to object to such speech or people and act against them, within the law.

Free speech doesn't entail that all speech is equally worthy, or that there is no basis on which speech of any kind can be objectionable.  Free speech doesn't require that we suspend judgment when we encounter speech that is despicable and accept any view voiced regardless of its merit.   We need not tolerate all speech, just as we need not tolerate all conduct on the grounds that all people are free to do as they please.  The legal right of free speech and the First Amendment are poorly served by those who claim the right to say whatever they want whenever or wherever they want.