Tomorrow, October 7th, the Supreme Court will hear arguments in Salazar v. Buono, a case with a complicated litigation history that now poses a simple, potentially devastating challenge to constitutional prohibitions on establishing religion. In Salazar, the Court is being asked to limit dramatically--or virtually eliminate--the right of taxpayers to sue the federal government for maintaining sectarian religious symbols on public property. If the Court seizes the opportunity and denies taxpayer standing to challenge federally sponsored religious displays, then constitutional prohibitions of such displayys will be effectively unenforceable; in other words, at least in part, the establishment clause will be merely hortatory.
The Salazar case began in 2001, when a former national park service employee, Frank Buono, sued the government seeking removal of an eight-foot cross from federal land. (The cross was erected by the Veterans of Foreign Wars in 1934 in commemoration of World War I vets and has long enjoyed favored religious status. In 1999, the Parks Service declined a request to erect a Buddhist memorial in the vicinity of the cross.) Buono won his case in Federal District Court and the 9th Circuit Court of Appeals in 2004, prompting Congress to transfer the property underlying the cross to the VFW. Buono went back to court for another round and obtained a second ruling from the 9th Circuit, in 2007, invalidating the property transfer and ordering removal of the cross. It is this 2007 ruling that is now before the Supreme Court, and it is in this second round of litigation that Buono's standing to sue has become a central issue on appeal.
The government did not appeal the 9th Circuit's 2004 ruling supporting Buono's challenge, meaning that it did not then challenge its initial standing. Buono, represented by the ACLU, argues that the government is procedurally foreclosed from raising the standing question now, giving the Court a good reason to avoid answering it. But the Court's conservative majority has been relatively hostile to establishment clause challenges (Justice Thomas would not even apply prohibitions on establishing religion to the states), and in 2007, in Hein v. Freedom From Religion Foundation, the Court held that taxpayers lack standing to challenge executive branch expenditures that allegedly violate the establishment clause. (Hein involved an ill-conceived challenge by the Freedom from Religion Foundation to executive branch actions promoting the Administration's "faith-based" initiative; the Court didn't decide the merits of FFRF's establishment clause claim since it denied the group standing to sue.) Salazar, however, involves Congressional action; and in Hein, the plurality opinion distinguished challenges to congressional appropriations from challenges to discretionary executive spending.
But the distinction in Hein between congressional and executive expenditures in establishment clause cases seemed merely politic (if not downright cynical); it allowed the Court to appear respectful of precedent (mainly Flast v. Cohen), allowing taxpayers to mount establishment clause challenges to Congressional spending. Justice Scalia, who at least has the courage of his theocratic convictions, chided the plurality in Hein for its incoherent "minimalism," stressing that the logic of the Court's opinion required it to overrule Flast; as he trenchantly stated, the plurality relied on
"the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently ... laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive."
Salazar gives the Roberts court an opportunity to take Flast off life support, ending taxpayer suits against congressional as well as executive branch expenditures in many--if not most, if not all--establishment clause cases. In Hein, the 7th Circuit had upheld FFRF's right to challenge executive branch actions promoting religion; as Judge Posner observed (hypothetically), recognizing a controlling difference between congressional appropriations and discretionary executive spending in an establishment clause case could prohibit taxpayer suits against such gross constitutional violations as a decision by the Homeland Security Department to "build a mosque and pay an Imam a salary to preach in it," in the hope of reducing terrorism. Or as FFRF argued before the Supreme Court, denying taxpayer standing to challenge executive branch expenditures establishing religion would effectively immunize from taxpayer suits the use of discretionary executive branch funding to purchase and distribute sectarian religious symbols, award government contracts on the basis of religious belief, or otherwise engage in direct proselytizing.
'Hallelujah," groups opposing taxpayer establishment clause challenges might respond; enabling government funding of sectarian religious (especially Christian) symbols and activities as their goal. People who object to officially sponsored sectarianism or official religious favoritism (at issue in the Salazar case) are merely "offended observers," the American Center for Law and Justice asserts, implicitly characterizing the constitutional prohibition on establishing religion as a mere form of political correctness.
Madison and Jefferson might disagree, but Justice Scalia has already made clear his support for government promotion of religious belief: the First Amendment "permits (the) disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists," Scalia declared in a 2005 case, dissenting from a decision invalidating an official Ten Commandments display. (Not that the Court is generally or categorically hostile to official religious displays; in a companion case, it rejected a challenge to a Ten Commandments monument on the grounds of the Texas state capitol.)
Scalia's support for official expressions of bias against non-theists or polytheists partly reflects a majoritarian approach to church/state issues, generally shared by opponents of taxpayer establishment clause cases. The remedy for government action establishing religion should be political, they argue: if you suffer discrimination or simply alienation as a result of state sponsored religion, or if you object to discrimination suffered by religious minorities, your remedy is said to be political, not judicial. You should seek redress from your elected representatives, not from the courts. The trouble is that your elected representatives respond to majority opinion and majority biases in favor of religious beliefs (especially mainstream beliefs), which is precisely why freedom of and from religion was enshrined in the Bill of Rights, to be protected by the courts from majority rule.
That was then. The Supreme Court has already effectively immunized the executive branch from taxpayer lawsuits challenging establishment clause violations. In deciding Salazar it could immunize Congress as well. In these cases, the Court would then save itself the trouble (that Chief Justice Marshall imposed on it 200 years ago,) of deciding "what the law is," and "whether an act, repugnant to the constitution, can become the law of the land." As veteran legal aid attorneys used to say, decades ago, "The Constitution has no standing in Brooklyn." It will be no joke if the Salazar case helps ensure that the establishment clause has no standing, and not just in Brooklyn.
Photo Credit: Flickr User functoruser
Religious Views
Religions have cast an adverse net over humanity for millennia and the jury is no longer out on the basic issue as the verdict has become crystal clear to society excepting those still chained to the walls of superstition. The very word “religions” can be said to pertain to divisiveness and as civilization wakes from the sky-fairy dreams of charlatans and charmers a new and complete overhaul of earlier as well as contemporary thought becomes necessary for humanity to progress.
“Hope” is a wonderful concept but placing the value of its meaning on some fictional icon or object of worship is delusional not to mention damaging and dangerous on a much grander scale than affecting just those attending some local church or mosque. This is becoming more and more obvious as the world observes its social and cultural environments more closely. Though the ignorant postulates of this or that god, creed, or theology rant on the attributes of their particular views, the facts remain that in this it becomes quite evident that theirs is a combatant position. Any examination by intelligent investigation will uncover the myths surrounding these imaginary concepts.
But I also have some questions that have not been answered to my satisfaction…In our day and age, with all the empirical evidences that have been brought to light; how be it still possible for entire nations to be enslaved by these theocratic ideologies? By what means can any group of zealots regardless of their own self-delusions maintain such a sway and influence the reason of so many? How do such far fetched and ridiculous schemes gain such credence while at the same time other stories much less fantastic are deemed as science fiction or fantasy?
I’ve personally witnessed Corporate America use religious conviction to forward its own agenda. The “fattening of wallets” by these unscrupulous characters is no secret and has been exposed to everyone other than the thickest of humanity. One merely does as one “need” and forgiveness is but a prayer away. Belief has replaced morality and virtue. The participants involved with various theologies themselves in power mad schemes aimed at manipulation and coercion are not always aware of their own goals as many are deceived by their own bait and thus lured into various webs of their own manufacture. I find it sad to witness the gullibility and self deceptions played on believers by their own fantasies. It’s almost like a flame that attracts the moth with the flame being an invention of the victim. At times I think some have subconsciously realized their own deceptions, self deception and have pushed a kind of self destruct button. Others continue blindly following their antediluvian mysteries paying homage to long dead and dying concepts and myths in a macabre ritual refusing to acknowledge the obvious, preferring to maintain their antiquated and outmoded systems to change when change is manifested so blatantly visible and entirely simple.
Were it not only dangerous but detrimental for humanity in general, perhaps I could find the patience to ignore these various and sundry postulates and proselytizers allowing time itself to erase these fallacies by natural evolution. Yet, when I see and realize through my own studies, evaluations and experimentations the clearly vile and reprehensible acts and condition these religions have brought to humanity I can no longer remain silent. This plethora of belief systems is responsible for a very great deal of the many ills that afflict mankind both individually and collectively. For example: When I see a child’s suffering and demise due to some nonsense based on an over active imagination to the point of creating an adverse system of posits that refute sound medical principle I’m more than appalled. When I become aware of people who are suffering from diseases such as diabetes and Alzheimer’s and understanding that great strides to alleviate these conditions are hindered, suppressed, and even halted due to some fabricated interpretation of some imaginary man-god or spirit or talisman, book, or scarecrow I marvel. That the human race can be captivated and controlled by such ignorance as sexual and racial prejudices not only condoned but promoted by religion is not only frightening but travels much deeper into thoughts beyond my ability of expression.
Credence has somehow been bestowed perversely on a mere few in comparison to the number of acolytes who stumble along obediently struggling to follow the teachings of this same few who’ve concocted these regimens. It seems in these scenarios that these “leaders” simply take the time to read and memorize a certain set of “isms” and then by attesting to the profundity and in most cases altering the original arrangements in such a manner to promote their own agendas create their own concepts accordingly. At the same time, there seems to be any number of recipients who are quite willing to accept these concepts naively and without question or challenge. It suggests of an emotional whirlpool of enormous scope that’s void of reason and logic. Does this eddy of innocence remain unaccountable relying on the excuse of ignorance? Is absolution of the personal conscience derived from the, “I am/was just a soldier following orders” philosophy and response? “This is the way I was taught.” or, “This was the way I was raised to believe.” can only take one so far but somewhere the “buck” stops, or does it? Is there a quirk in the human psyche that will allow responsibility to be caromed about as if contained in some infinite pinball machine gone mad?
I enthusiastically take note that the United States is gradually moving in a direction that’s reducing the influence religions play in the political arena for example but at the same time take note that the supporters of religion seem to grow more militant in their charges. The numbers attest that Americans are seeing an expanding percentage of “nonbelievers.” A very large portion of Europeans by comparison have shed the confines of religious addiction. Orientals experience a far better form of philosophy that much better advertises itself in a more passive term than that of a “true” religion in the strictest sense of that description. The Middle East remains another story as the fires of Islam have never been tempered by an “Enlightenment” and remains the youngest of the major religions. Conceived in this cesspool of sand, the constituents remain trapped in an ignorant society funded by the abundance of fossil fuel that lines the pockets of the most volatile and violent Theocracies on earth. It is quite evident that the majority of these people remain closer to the savage as evolution knows no firm and even expression of order. A reversal toward barbarism is not an unheard of occurrence in the history of humanity and is certainly not ruled out even in today’s cultures. If one observes closely and examines carefully it will be of no surprise that the majority of these, “reversals” are triggered by or has their roots connected to some religious mythology. Even in the religions that appear to have evolved somewhat, the cauldron of hate resides just under or behind a veneer of smiles. If one strips away their veils of superficial tolerance and exposes what lies beneath, the ugly truth of their camouflage becomes apparent and once again they’re exposed for the terrorists they are and the terror they export.
Rationalizing religion is nothing more than a band-aid over hypocrisy. An inability to confront the obvious is washed over in an attempt to pacify the more adamant zealots of any given theology. Most everyone is familiar with that old but true adage, “People who want to share their religious views with you almost never want you to share yours with them.” Without a great deal of effort in recall the truth of this axiom has been experienced by most of us. Those who do ask about a differing opinion in most cases are merely searching for a point of contention. A brief conversation with any of these exposes their combatant nature as their rehearsed rebuttals and challenges are voiced in a kind of repetitive rote. These efforts can’t be rationalized to the thinking brain anymore than a willfully and deliberate negative choice can be attributed to an “accident.”
It must also become evident that unless some unforeseeable and cataclysmic event takes place, religions will be with us in some varying degrees for quite some time. Perhaps in the short history of man some cultural meme has been injected into our DNA creating these conditions. I certainly don’t have all the answers or even a few. It’s probable that I haven’t addressed your own particular view. None of this has been my intent. There is no way for myself or anyone to address the entirety of humanity’s consciousness. My efforts have been directed at exposing only a few considerations for contemplations.
Momintum