Mt. Soledad Cross

The Ninth Circuit (the federal Court of Appeals that covers California) has told the District Court to vacate (withdraw) its order requiring removal of the large cross on Mt. Soledad in La Jolla.

On May 3, 2006, Judge Gordon Thompson, Jr., moved to enforce an order he initially made in 1991, telling the city that the cross violated the state constitution's ban on government aid and preference for religion, and to remove it or face a fine of $5,000 per day. In August, Congress passed a bill allowing the federal government to take control of the land. That rendered Judge Thompson's order moot, since the land no longer fell under the authority of the California constitution, triggering the 9th Circuit's decision.

Two more lawsuits, of course, are in the wings, challenging the federal government's allowing the cross to remain on federal land.

That we spend so much time on issues like this confirms my view that our freedom-of-religion jurisprudence is wacky. It's a majority (and historically) Christian country. You don't have to like it, but it is. Get over it.

The Somali Cabbies of MPLS

Somali cabbies in Minneapolis, who apparently make up a significant proportion of the cabbies who serve the airport, are demanding the right to refuse service to anyone transporting alcohol, or dogs. Alcohol is forbidden under Islamic law, and according to some interpretations, dog saliva is ritually unclean.

In fact, the unilateral refusal of service is inconveniencing others, including the "First Mate," the wife of Minneapolis blogger Captain Ed:

It also goes beyond the airport cabs, as the First Mate discovered on more than one occasion where she used taxis for normal travel when she still used Cory as her guide dog. She had to threaten one cabdriver with a complaint to get him to allow the dog, and on other occasions had to explain the open access laws for service dogs in America.

Now, compare and contrast the issues raised by Christian pharmacists who claim the right to refuse to sell the "morning after" pill on the ground that it's a forbidden abortifacient. Feminists and lefties are outraged, arguing that a pharmacy is a kind of public utility that should not be able to pick and choose what services within its authorized area of business it will provide.

The Muslim cabbies and the Christian pharmacists are claiming a religion-based exemption from a rule of general application.

There is a long history in this country of enacting generally applicable laws that have a religious basis, notably Sunday closing, or "blue" laws. These have been upheld in many cases, but on the somewhat strained basis that they have a secular purpose, such as limiting the hours of work or preventing traffic congestion.

The constitutional case law in this area is quite confused. But from a policy perspective, requiring a licensed public conveyance to carry anyone carrying a lawful substance or a licensed guide dog hardly seems like an imposition, and the demand for an exemption by a religion whose beliefs demand the enactment of its own system of law to govern society as a whole, seems ominous.

The Culture Wars Go to Court (Yet Again)--The University of California vs. Christian Schools

(Originally published February 15, 2006)

An important First Amendment dispute is winding its way through the courts in Riverside County. In California, the University of California (Berkeley, UCLA, etc.) sets admissions standards. If it refuses to approve certain courses, or requires others, there is a ripple effect throughout the high schools, public and private, whose more qualified graduates often apply to UC.

Although UC has approved high school courses on theme such as feminist approaches to literature, it has recently refused to approve courses offered by Christian schools, such as Christian approaches to literature. The dispute also extends to science classes--physics and biology. The Calvary Christian schools contend that UC is disapproving the courses because of the points of view they espouse, not because the courses are of inferior quality or don’t cover important and challenging literature. UC says it's enforcing scientific and intellectual standards, not discriminating against faith-based institutions.

The U.S. and California constitutions forbid such discrimination, but don't bar a state university from setting academic standards. Because UC is a state institution, the First Amendment would prevent it from discriminating against a course because its viewpoint is influenced by religion (or anti-religion, for that matter).

If the standards of the course are too lax, its a different story. There could be a different story in the case of science classes. A biology class that didn't cover evolution, or a physics course that didn't address the Big Bang would be in violation of generally accepted scientific standards. A biology class that presented the theory of evolution thoroughly, but criticized evolutionary theory on empirical or religious grounds would be a closer question. Is it enough to explain the theory and express skepticism about it, or must it be taught as truth? These questions aren't easy. The outcome may well turn on the specifics of the courses, and the University's record on similar courses whose orientation is less likely to offend the liberal mind. Judges hate to second guess academic decisions, if only because they want to discourage lawsuits on these matters, but when a constitutional issue is joined, the courts have no choice but to decide it. Watch this space.

Hat tip: Al Mohler, who cites an article by Charles Haynes of the First Amendment Center

Free Speech--or Safe Speech?

Within the worldwide rioting and controversy over a few cartoons published in a small Danish newspaper lurks a distinction between two approaches to freedom of speech. In the United States, there are few limits on speech about matters of public controversy. Even the libel laws have been weakened because it seemed more important to allow robust debate, at least about "public figures" than to suppress speech. Two examples illustrate the point.

In 1978, a small group of neo-Nazis decided to conduct a march through the Chicago suburb of Skokie, Illinois, which had a large Jewish population. Even though the march was highly offensive and could have provoked a violent reaction, in the end, the courts held that the authorities could not ban it. The ACLU (American Civil Liberties Union), notwithstanding the many liberals of Jewish origin in its ranks, took the "First Amendment absolutist" position that however offensive, the First Amendment forbade a ban on the march.

A 1949 case, Terminiello v. Chicago, addresses that question: can the authorities ban speech that arouses the anger of others and thus is likely to cause a public disturbance. Terminiello was an extremist who sought to deliver a speech to the Christian War Veterans of America. A hostile crowd gathered, and the authorities arrested Terminiello, who was convicted of disorderly conduct. The case found its way to the U.S. Supreme Court, which overturned the conviction, holding: Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262, 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373, 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. The job of the police, therefore, is to protect the speaker from those angered by his speech, not to arrest the speaker, even if his ideas are outrageous, to protect the public peace.

There is another view, that finds currency in Europe, and also in corners of this country, for example, some colleges and workplaces. This view is that the social harm (not to say danger of disorder) caused by speech that offends racial, religious, or other minorities, outweighs any benefit in allowing such speech, and therefore the law can prohibit or punish certain kinds of speech. An example of this kind of law is the prohibition in Canada and many European countries, on public denial of the Holocaust, and the German ban on displaying Nazi symbols.

This approach finds its strongest echoes in this country in colleges where campus codes prohibit "racist" and "sexist" speech, and workplaces where employers, fearing "hostile environment" discrimination lawsuits, prohibit certain kinds of remarks and expressions of opinion. These restrictions are often not directly imposed by government, and so are a bit different than the European and Canadian laws.

The vice in this kind of law is not only that it will lead to standardization of ideas by dominant groups, but it is likely to best protect those minorities, such as radical Muslims, who are most easily offended and most likely to react violently to opinions, words, or even cartoons they dislike. The more sensitive the minority and the more severe its reactions when offended, the more likely the law is to cater to its prejudices. For this reason, retreat from the American principle that freedom of speech and the press includes the right to say things that will offend others would be most dangerous. In our society, almost anything one might say other than "Have a nice day!" is likely to offend someone.

A society that starts suppressing ideas just to avoid hurting people's feelings, is well on its way to losing its freedom altogether. This danger is not imaginary. In Sweden, a minister was prosecuted for expressing the view that the Bible condemns homosexual conduct. In Italy, Oriana Fallaci is being prosecuted for her polemics against Islam. And so on, down the slippery slope. That is not to say that people should act in a way that offends others, or that tests the limits of free speech and the patience of the public, just to prove in the most puerile way possible that speech is free--only that the law should not prohibit speech just because some find it offensive or even infuriating.