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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, May 31, 2005 ::
    Justice Thomas: Establishment Clause is a federalism provision

    The Court has unanimously upheld the prison section of RLUIPA against an Estabishment Clause challenge. Justice Ginsburg wrote for the entire court, but Justice Thomas concurred to add:
    Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws “respecting an establishment of religion”; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion.
    Now, before you conclude that Thomas would give a bright-green light to state establishments of religion, note that he also says, concerning the challenged section of RLUIPA, that it
    does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion.
    Otoh, he does not endorse the notion of "an incorporated [Establishment] Clause."

    :: David M. Wagner 12:13 PM [+] ::
    :: Wednesday, May 25, 2005 ::
    More on the deal

    Well, the Washington Post is sure -- and wants you to be sure -- that the fight over the legitimacy of the judicial filibuster is over and the Democrats have won. ("With the Senate filibuster dispute behind it, the White House is bracing....") With that, it lists the potential nominees President Bush could send into the 35-vote Minority of Death:
    Among those most often mentioned by insiders are Judges J. Michael Luttig and J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit; John G. Roberts of the D.C. Circuit; Michael W. McConnell of the 10th Circuit; Emilio M. Garza of the 5th Circuit; former solicitor general Theodore B. Olsen; and former deputy attorney general Larry D. Thompson.
    Meanwhile, The Union-Leader, the conservative daily in the key presidential primary state, takes Frist to the woodshed.

    The filibuster's honorable history is in the arena of controversial legislation. Its use against judicial nominations, at any level, is virtually unprecedented and utterly illegitimate.

    :: David M. Wagner 12:35 AM [+] ::
    :: Tuesday, May 24, 2005 ::
    The deal

    First: Nothing that gets Owen, Brown, and Pryor through is all bad. There are more nominees being inexcusably blocked, but these three were well-chosen for frontloading.

    Second: A game can be won by repeated goal-line stands that result only in a field-goal (three points, three judges, get it?). The key word, though, is repeated. Frist has to charge to goal line again, and it's not clear that he will. NRO says: "The Republicans who signed the deal appear to have committed to allowing filibusters throughout this Congress."

    They just better had not, especially if, as seems increasingly likely, there is a Supreme Court resignation this summer.

    Frist thinks he can be a serious presidential candidate in 2008. For that, he needs A+ on judges. The deal is not his doing, but if he fails to charge the goal-line again -- bring the Senate to the brink of serious filibuster, and over it if need be -- he will have failed on this issue.

    :: David M. Wagner 9:56 PM [+] ::
    The Perfect Storm:

    * Rehnquist goes to nurse's office
    * Supreme Court takes its first abortion case in five years
    * Senate leaves judicially filibuster mostly untouched but still challengeable

    :: David M. Wagner 9:23 PM [+] ::
    :: Monday, May 23, 2005 ::
    What will I blog about when I have time to blog again?

    * Granholm v. Heald, the wine decision
    * The latest on Dr. Filibuster's All-Heat No-Vote Fireworks
    * Briefs and arguments in the Ten Commandments cases

    :: David M. Wagner 10:56 AM [+] ::
    :: Wednesday, May 18, 2005 ::
    A (temporary) deal on judges?
    In the proposal under discussion, Democrats would agree to allow up-or-down votes on as many as five of the seven nominees they previously blocked. That would require the six Democrats to vote with Republicans to end debate on each nominee in a procedural move known as cloture, which requires 60 votes.

    The Democrats would reserve their right to filibuster future nominees -- including a potential Supreme Court nominee -- but would agree that they would use that right only in the most extreme cases. In exchange, six Republicans would agree to vote against Frist's rule change during this congressional session.

    OK, as long as (1) that's five, not "as many as five"; (2) Republicans do not agree in principle that any judicial nomination, least of all one to the Supreme Court, may be filibustered; and (3) the Democrats vote first.

    :: David M. Wagner 12:48 AM [+] ::
    :: Tuesday, May 17, 2005 ::
    For my sins, I've just been on NPR again.

    Look, the Death-Left should make up its mind: either the Bible says nothing about abortion, in which case legislating against abortion has nothing to do with "enforcing Biblical morality," or it does, in which case Christians who favor a liberal abortion regime have some explainin' to do.

    On this broadcast, Paul Simmons, of Americans United for the Separation of Church and State, and a true lightweight, went out of his way to assert that the Bible says nothing about abortion. If he ever got around to explaining how, in that case, the pro-life movement represents an illicit mixing of religion and politics, I sure didn't hear it. I would very much have liked to, and said so more than once.

    I know the Biblical pro-life texts fairly well, but somehow I think that getting drawn into a proof-text-fest is a trap. Instead, if you hear the "Bible doesn't condemn abortion" meme, come back with "Well in that case, pro-lifers can't be accused of mixing religion and politics." Keep doing it until they stop.

    Oh, and the part about how we want to revive Puritan Massachusetts? Familiarize yourselves with some of the seemier side of that regime (e.g. they burned a Quaker or two), and express how angry you are that you're being accused of wanting to revive that. Your opponent will reel backwards, as Mr. Simmons did, even to the point of denying, as Mr. Simmons did, that he did, in fact, just accuse you of wanting to revive Puritan Massachusetts.

    (Ironically, Massachusetts is still puritanical, in a way: it just does it in service of a different religion. The "we're the elect" mindset doesn't go away, even when the underlying worldview does a 180.)

    Several of our callers were people who just "know" Christianity is a lot of hooey, because of their "experience" with it. I guess this is one style of postmodern epistemology: we can know only our own experiences, but we can generalize freely from them. One of my young colleagues in marketing was visibly upset. "I've never put my faith in men," she said (meaning human beings!), "so when a minister or a youth pastor messed up, I wasn't surprised, and I certainly didn't think it meant God had messed up. But some of these people...."

    :: David M. Wagner 1:57 PM [+] ::
    :: Monday, May 16, 2005 ::
    According to this blogger, Hugh Hewitt said on his radio show:
    Benedict the Sixteenth announced opening of the cause for Beatification of John Paul the Second. He is waiving the normal waiting period of five years - which means you can now become a saint quicker then you can be confirmed a federal judge.

    :: David M. Wagner 12:44 AM [+] ::
    :: Tuesday, May 10, 2005 ::
    To my Con Law students: You are lame, because you have not yet signed up for my Constitutional Theory seminar this summer. Sign up -- it is your destiny!

    "Constitutional theory is the pathway to many abilities some consider to be unnatural."

    "Is it possible to learn this power?"

    "Not from a Jedi."

    :: David M. Wagner 2:44 PM [+] ::
    "Kingdom of Heaven"

    Ever since I appeared in this CBN panel discussion on the Crusades, many people come to me and they say, "Eh, what did you think of Kingdom of Heaven?"

    For articles and blogposts that reflect my views, go here, here, here, and here. And also here, where I myself (back when this blog had a less sexy template) wrote about Prof. Jonathan Riley-Smith, Cambridge-based Crusade historian, who argues that the reputation of Muslim warlord Saladin is inflated, to say the least.

    To those, I would only add this: I'm afraid this movie, and also last year's dog King Arthur, tend to drive a wedge between Catholics and Protestants. I've heard several Evangelical friends say, in defense of one of these movies or the other, "Oh but that wasn't Christians, it was the Church!" Needless to say, this distinction does not come as effortlessly to -- people like me. After all, Saul's excuse was not: "I wasn't persecuting you, Lord, I was persecuting your followers!"

    :: David M. Wagner 2:27 PM [+] ::
    :: Wednesday, May 04, 2005 ::
    Bigtime cultural politics at the Air Force Academy

    We'll start with The Washington Post's coverage:
    The Air Force said yesterday it is creating a task force to address the religious climate at the U.S. Air Force Academy, following allegations that its faculty and staff have pressured cadets to convert to evangelical Christianity.
    Are you in any doubt as to which synapses are supposed to be fired up in your brain by this news? In case you are, the Post explains it all for you:
    The investigation is the second major probe of the academy in two years. In 2003, dozens of former female cadets came forward to say they had been sexually assaulted at the academy, prompting an overhaul of its policies toward women.
    See? Christian proselytism, sexual harassment -- same thing, right? Both lead to an Investigation.

    A report by Americans United for Separation of Church and State, an activist group that doesn't think Christianity in the public square is a good thing at all (click on the link and make up your own mind about its agenda) gives four specifics. Let's look at them in turn, as recounted in the Post. First:
    The report said that during basic training, cadets who declined to go to chapel after dinner were organized into a "Heathen Flight" and marched back to their dormitories.
    Excuse me, but for cadets, the after-dinner hour during basic training is not free-time. Air Force basic training may not be exactly Marine boot camp, but it's not Club Med either.

    A colleague who is an Academy graduate explains to me that cadets are required to return to their dorms. In the alternative, they may attend chapel; they don't have to, but if they don't, then the otherwise-applicable requirement of returning to the dorm kicks back in. Americans United makes it sound ("were organized...and marched back") as though returning to the dorm were punitive. It's not: it's normal.

    What else?
    It said the Air Force's "Chaplain of the Year" urged cadets to proselytize among their classmates or "burn in the fires of hell";
    Were any of those cadets forced to listen to that message? If not, what are you complaining about -- that this message was preached to willing listeners? The Great Commission is an essential part of Christianity. A Christian chaplain isn't doing his job if he doesn't preach it to his flock. There's a religious liberty issue here both for the chaplain and for those who attend his services.

    What else?
    that mandatory cadet meetings often began with explicitly Christian prayers;
    "Explicitly"? Whoa baby: sounds like something obscene under Miller. Well, whereas the first two charges are meritless, this one rises to the level of trivial. Maybe theologically "neutral" prayers at public events would be better policy for the Air Force Academy; but if they do let in a few prayers that mention You-Know-Who (and no, I don't mean Lord Voldemort!!), well, one would expect our future flyboys and -girls not to wither.

    What else?
    and that numerous faculty members introduced themselves to their classes as born-again Christians and encouraged students to become born again during the term.
    You mean, faculty members exercised their own free speech and free exercise rights? Can't have that. OK, religious hectoring should be kept within reasonable bounds, and those bounds are tighter in a government facility. But, a great big honking Investigation, with front page coverage in The Washington Post?

    A former Reagan White House lawyer, an Academy grad-and-dad, is quoted by the Post as saying: "The place is being held hostage in a vise grip by evangelical Christians, and people are terrified to come forward" But then we read: "In a statement yesterday, the Air Force said it discovered 'perceptions of religious bias' during a 2004 survey in which some cadets complained that evangelical Christians were pressuring Jews and other Christians." Doesn't sound like people were "terrified" to come forward when that survey was taken. It sounds like they did come forward, and that the Air Force is doing something about it.

    David Kelly of The Los Angeles Times gives us more factual meat than the Post does. According to his report, the former Reagan lawyer says that his son, a student at the Academy, "was called a 'filthy Jew.'" Now, that's unacceptable at an American institution. If it was anyone in authority who said it, a head or two should roll. If it was another student, that still points to a problem. But -- a problem that the Air Force is already addressing. All right? No, not all right, because if the Air Force's own internal tolerance program is given a chance to solve the problem, then we don't get our Investigation, and the Investigation is what it's all about. Why?

    Coincidentally, if you believe in coincidences, I read earlier today about the experience of Barbara Nicolosi, a Hollywood screenwriter and outspoken Christian. She gets interviewed a lot, and twice in the last five days, reporters ostensibly interviewing her for her views on current movies have also fished around for details about her politics. Why? She writes:
    both journalists slipped in the query, "So, who did you vote for in the last election? You're a Bush voter, aren't you?"

    I said to the Daily Variety guy, "You aren't trying to narrowly define me so you can dismiss me, are you?" When it happened yesterday with the Times I got a little more annoyed. "Did you ask the Hollywood pagans you are interviewing for this story that question?" Both journalists demurred in extravagant terms. They were just "collecting context" for their pieces. But then, the Times guy came back insistently, "Would you characterize yourself as right or left of center?"

    I liked both the journalists, and they liked me. The Variety guy asked me if he and I could have coffee someday soon, just to talk about a whole lot of things. The Times guy said, "This has been a fun interview. You're not a regular Christian, are you?" I said to him, "Why, because you like me, and that doesn't fit with your prejudice about my people?" He said to me, "You don't sound like some other Christians I have interviewed." I couldn't resist coming back with, "That's because we are a diverse people, not chained by politically correct dogma."

    I know I am slow on the uptake here, but I can't stop marveling about the pervasive anti-Christian bigotry that continues to mess with the MSM's attempts to cover the whole red-state, Passion-watching, Terri-Schiavo-crusading, spiritual revival moment that is arm-wrestling the culture of death in the marketplace of ideas. These reporters NEED for us Christians to be the people they need us to be: basically sub-human intolerant simpletons who can be dismissed....
    What does being part of the "Passion-watching" sector of society have to do with the Air Force? Reporter Kelly doesn't seem in any doubt about it:
    Air Force officials said they first got an inkling of a problem after reading the results of a student survey last May. Many cadets expressed concern over religious respect and a lack of tolerance.

    Then, The Passion of the Christ, Mel Gibson's film about the crucifixion, had been released. Hundreds of small movie posters were pinned up in the academy dining hall advertising the movie. Cadets did mass e-mailings urging people to go see it.
    Ah HA!!

    Now, you can debate the propriety of using government e-mail channels to promote a movie that does, after all, pack a powerful Christian wallop. But to conclude that this was improper (if it was) doesn't end the matter. Kelly, to his great credit, also quotes an old friend of mine, someone I know to be a man of moderate spirit and careful judgment:
    Tom Minnery, vice president of public policy at Focus on the Family [which, like the Air Force Academy, is based in Colorado Springs], last week denounced any acts of bigotry but said it was Christians who were facing discrimination.

    "If 90 percent of cadets identify themselves as Christian, it is common sense that Christianity will be in evidence on the campus," he said. "Christianity is deeply felt and very important to people... and to suggest that it should be bottled up is nonsense. I think a witch hunt is under way to root out Christian beliefs. To root out what is pervasive in 90 percent of the group is ridiculous."
    Ridiculous -- but evidently, a culture-war imperative.

    :: David M. Wagner 6:10 PM [+] ::
    Attention, Regent students: more proof that U.S.News&World Report rankings are misleading. Thank you, Mansfield Fox!

    :: David M. Wagner 1:49 PM [+] ::

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