Last year at this time, I talked to you about the constitutionality of Christian nativity scenes under the Establishment Clause of the First Amendment of the United States Constitution. I told you how the rule evolved over time to allow nativity displays in public places, but only if they are deemed to serve secular purposes such as celebrating a holiday or depicting the origins of that holiday. The displays that have passed constitutional muster in recent years have all included non-Christian symbols, like plastic reindeer, leading some to derisively call the current state of the law on this subject the ‘reindeer rule’. I showed you how, through the wizardry of Supreme Court jurisprudence, the Establishment Clause – which, on its face, has nothing to do with passive religious displays – is now the ‘endorsement clause’ – Congress shall make no law constituting an endorsement of religion, or appearing to favor one religion over another. Originally, the Establishment Clause was addressed to situations, like in my own state of Virginia, where the government in colonial times had ordered everyone to attend a particular church and had even paid the ministers. That’s the establishment of a state religion, no question about it.
But now that Pandora’s Box has been opened – can I say that without endorsing Greek mythology? - the issue will probably never go away. Three current situations show how the battle continues. In the first, a 4-foot Satanic statue is now on display in the Illinois state capital building alongside a nativity scene. The Satanic Temple of Chicago – which says it’s merely a benevolent association – applied to display the statue and the Illinois state government decided the group has the same rights as any other religious organization, so its display could not be censored. The Satanic Temple says it does not actually worship Satan; it’s just a group of atheists, humanists, and free speech activists. So how is that a religion? The Supreme Court has never really defined ‘religion’ beyond saying it must be a set of sincerely held beliefs, no Deity required. [Chemerinsky, Constitutional Law: Principles and Policies (4th ed. at 1231-34]. Atheism and humanism certainly qualify under that loose definition.
The second situation involves a 4-story tall World War One memorial in the shape of a cross in a Maryland suburb of Washington, D.C. The Fourth Circuit Court of Appeals emphasized the Christian origins of the memorial in ruling that it violates the Establishment Clause and must be removed. [American Humanist Association v. Maryland-National Capital Park & Planning Commission] That case is now in the Supreme Court.
The third situation involves a cross that has been in a Pensacola city park for 75 years without controversy, up until now. A three-judge panel of the 11th Circuit has ruled that the cross must come down. The city wants the Supreme Court to take the case, arguing that long public acceptance of the cross is enough to make it kosher under previous Supreme Court precedents and, further, that the passage of time before any legal challenge was mounted indicates that just about nobody considers the cross to be an ‘establishment’ of religion. As of this writing, the Supreme Court has not indicated whether it will take the case.
From time to time on these webinars, I have criticized the Supreme Court for deviating from the Founders’ design. When the Supreme Court stopped requiring active measures imposing a state religion to make out violations of the Establishment Clause, and veered off into deciding whether passive religious displays endorse religion, it opened the door to an endless stream of cases where it would have to decide on fine shadings of fact what is and what is not an ‘endorsement’. How many reindeer are enough? None of this would be necessary if the Supreme Court had stuck to the original meaning of the word ‘establishment’ in the first place.
But that’s just me. Like I said, this issue isn’t going away. See you same time, a year from now.
Conservative groups win smashing free speech victory over UCal-Berkeley (Constitution news round-up)
1A: Conservative groups win smashing free speech victory over UCal-Berkeley for hamstringing speakers (including Ben Shapiro) – school to pay $70,000, rescind unconstitutional and discriminatory policies
Free Expression: Gonzaga U – What would Jesus do? Why, ban Ben Shapiro, of course! Catholic school caves to heckler’s veto, refuses to let Shapiro speak because people might be upset.
1A: Supreme Court extends Janus principles to bar dues; attorneys can’t be compelled to pay for bar associations’ political speech
1A: Law of compelled speech is complicated and unsettled – wedding cakes, union dues, abortion info at pregnancy centers, transgender pronouns (panel discussion)
1A: NFL season ticket holder – I have a right as a member of a captive audience to be protected from unwanted ‘take a knee’ protests. Louisiana appeals court – not a valid cause of action
Free Expression: Google employees discussed manipulating search results, burying conservative media to swing 2020 elections. Please All-Knowing Google, teach me critical thinking. What a bunch of airheads!
2A: New York bill would require gun purchasers to submit their social media and online search history
2A: Maryland ‘red flag’ law draws 114 gun removal requests in its first month
South Africa gun registration law predictably cascades into gun confiscation law. Gun grabbers want ALL your freedom. Don’t give them ANY of it.
4A: Officer – I knew it was wrong to place a GPS tracker on defendant’s car without a warrant, but I did it anyway. 4th Circuit – flagrant violation of the 4th Amendment justifying exclusion of drug evidence
4A: Wisconsin Supreme Court upholds use of GPS tracker on suspect’s car after warrant expired
14A Due Process: ACLU says ‘Marsy’ victims’ rights laws offend the presumption of innocence and the right of the accused to secure exculpatory evidence
14A Due Process: Rhode Island students sue state for denying right to be taught civics (how to become capable jurors, voters, and citizens)
5A: Supreme Court hears arguments in case testing whether separate state and federal prosecutions for same offense constitutes double jeopardy
5A Eminent Domain: Texas appeals court rules deliberate hurricane-related flooding of certain properties to prevent damage to other properties can be a taking requiring compensation
6A: New York high court rules possible deportation is a serious consequence triggering right to a jury trial
8A: Supreme Court appears ready to rule that excessive fines clause applies to the states; this would rein in civil asset forfeiture racket
10A: Supreme Court could pronounce in excessive fines case that all of the Bill of Rights are ‘incorporated’ and thus apply to the states; this would be disruptive (e.g., grand juries) and damage already weak federalism
Political Bias in Public Accommodations: Republican Club sues Pasadena for canceling event in rented hall featuring pro-marriage speaker
Economic Freedom: after Wisconsin law banning sale of home-baked goods, home bakers are better able to pay their bills, buy lessons for their children, and get health insurance.
Patents: elderly inventor sues Patent Office for bad faith discrimination, blocking his applications, violating his constitutional property rights
Shame and Kudos! Stanford administrator encouraged frat house to take down American flag as offensive to others. Frat responds by hoisting bigger flag. Mr. Administrator, show me your alternative flag. I’m waiting.
A federal judge has thrown out the federal female genital mutilation statute and dismissed the key charges in the Detroit FGM case.
I first told you about this case last year. At that time, the Muslims charged in the case were raising a religious liberty defense, arguing that they had acted within their constitutional rights on the facts presented. But the focus changed to the Commerce Clause and the judge ruled that FGM is a local criminal activity within the purview of local authorities and beyond the reach of Congress to regulate.
The Commerce Clause is in Article 1, Section 8 of the U.S. Constitution. It’s what gives Congress the power to regulate commerce among the several states. You may recall that Chief Justice John Roberts found that Obamacare violated the Commerce Clause before doing judicial backflips and upheld it as a tax.
The Detroit case was the first prosecution under the 22 year-old federal FGM statute. Prosecutors claimed that as many as 100 girls from Michigan, Illinois, and Minnesota had been cut. The defendants argued that FGM has nothing to do with commerce, that “mutilation is not an economic activity.” The government argued that children were transported across state lines and that the procedures were arranged with the use of cellphones, and involved medical tools and drugs sold in interstate commerce. They further argued that a healthcare service is a commercial service. The judge knocked down the FGM statute as unconstitutional and dismissed most of the charges against the two Michigan doctors.
In his opinion, the judge wrote that FGM may be a “despicable” practice, but it’s up to the states to regulate it. He recounted a long history of cases saying the federal government can’t touch purely local crimes. He said there was nothing commercial about FGM. It’s just an assault and, like rape, has no effect on interstate commerce. He relied on a precedent knocking down part of the Violence Against Women Act on the grounds that sexual assault has no effect on interstate commerce. He pointed out that, in the Detroit case, there was “no suggestion the procedure was done for money.” If there was evidence in the record that money changed hands, it was not reported in the stories I read.
The U.S. Attorney’s office hasn’t decided yet whether or not to appeal. Serious conspiracy and obstruction charges remain and are set for trial in August 2019, although there is now a motion to dismiss a conspiracy charge. There is a state FGM statute in Michigan, but the defendants in the Detroit case can’t be charged under it because it was passed after the federal case arose. You can’t charge people retroactively; that would be an ex post facto prosecution and unconstitutional under Due Process and Article 1, Section 9 of the U.S. Constitution.
You might recall a Commerce Clause case from the New Deal era, Wickard v. Filburn. The wheat in that case was consumed locally on the farm where it was grown and never crossed state lines. But the price stabilization statute was upheld because the farmer’s actions were deemed to have an effect on wheat prices elsewhere, so there was an effect on interstate commerce. We have, in the Detroit case, people who did cross state lines, but the statute was knocked down. If this doesn’t make any sense to you, welcome to the wacky world of constitutional jurisprudence.
There were other problems with the judge’s opinion. There is a distinction in the law between a facial challenge to a statute and a challenge to the statute as it is applied in a particular case. A successful facial challenge means there is no set of facts imaginable under which a law could be constitutional. A successful ‘as applied’ challenge means that the law is unconstitutional on the facts presented, but there might be other facts where application of the law would be constitutional. In the Detroit case, the judge said that FGM is not an economic activity or healthcare service. But what about potential cases in the 23 states that don’t have their own FGM statute making such cutting illegal and there is evidence in the record that money changed hands? Under those facts, there would be no local crime and the commercial nature of people crossing state lines to consume a healthcare service would be undeniable. Voilà! – the effect on interstate commerce the judge said was lacking in the Detroit case justifying Congressional regulation and the federal statute.
The judge did not limit his ruling to the way the statute was applied. Instead, this judge went out of his way to knock down the entire federal statute as unconstitutional on its face when there are circumstances under which it could be constitutionally applied under the judge’s own reasoning. The judge’s opinion does not hang together, logically speaking.
An appeal could go either way but, for now, the ruling only applies in the District where the judge sits. He did not issue a nationwide injunction, as is the fashion these days. It will probably be a long time before the issue reaches the Supreme Court and is decided there. The Supreme Court often waits for a conflict between Circuits or other courts of appeal. But there is a code of silence regarding FGM in Muslim communities, so there are few potential complainants and, consequently, few prosecutions will be brought around the country, if any are brought at all. These would have to work their way up through the appeals process and produce divergent results before the Supreme Court would get interested, if the common pattern holds.
Be that as it may, pressure will have to be brought on state and federal prosecutors to do their jobs and bring cases, or one tentacle of sharia law will have effectively extended its reach over America.
I discussed the Detroit case in greater detail on Sharia Crime Stoppers radio and you can find the archive here.
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