There's Bush Derangement Syndrome, there's Those Darned Jews Derangement Syndrome, there's Those Awful Somdomites Derangement Syndrome, and there's ACLU Derangement Syndrome. Clayton Cramer points to a very interesting lawsuit in Italy (I quote the Times (London) story, which makes the matter seem somewhat more troubling than the Washington Times story that Cramer links to):
AN ITALIAN judge has ordered a priest to appear in court this month to prove that Jesus Christ existed.But then, after noting the story, the post goes on:The case against Father Enrico Righi has been brought in the town of Viterbo, north of Rome, by Luigi Cascioli, a retired agronomist who once studied for the priesthood but later became a militant atheist.
Signor Cascioli, author of a book called The Fable of Christ, began legal proceedings against Father Righi three years ago after the priest denounced Signor Cascioli in the parish newsletter for questioning Christ’s historical existence.
Yesterday Gaetano Mautone, a judge in Viterbo, set a preliminary hearing for the end of this month and ordered Father Righi to appear. The judge had earlier refused to take up the case, but was overruled last month by the Court of Appeal, which agreed that Signor Cascioli had a reasonable case for his accusation that Father Righi was “abusing popular credulity”.
Signor Cascioli’s contention — echoed in numerous atheist books and internet sites — is that there was no reliable evidence that Jesus lived and died . . . .
Signor Cascioli’s one-man campaign came to a head at a court hearing last April when he lodged his accusations of “abuse of popular credulity” and “impersonation”, both offences under the Italian penal code. . . .
Now, I would like to think that the freedom of religion and freedom of the press provisions of the First Amendment would prevent such a suit from going forward in the U.S.--but you never know what cleverness the ACLU will pull out of its bag of magic tricks next.In Britain, a prominent scientist is arguing that religion is a form of child abuse [quote omitted] . . . .
Ah, that's it! The ACLU will argue that children have a right to not be mentally abused by exposure to religion. This was, after all, the policy of the Soviet Union, which prohibited teaching religion to those under 18, and the ACLU's founder was a defender of Soviet practices on civil liberties. . . .
Utterly missing is any foundation whatsoever supporting the assertion that the ACLU would support any such speech restriction. That the ACLU's founder was originally a defender of the USSR is quite right, but what happened in the 1930s tells us very little about what the ACLU is likely to do 70 years later. (It's also quite incomplete, I think, without an acknowledgment that Baldwin later turned into a severe critic of the USSR and of Communism.) The ACLU has on balance been a strong supporter of free speech claims; not as strong as I might have liked at times (including in some cases involving private religious speech in public schools and , though note its correct view in this religious speech case), but hardly a fit target for aspersions such as these.
When I queried Mr. Cramer about this (with a message that read "Interesting subject -- but do you have any foundation whatsoever for the suggest that the ACLU would make any such arguments?"), he responded:
Its long history of opposing religious instruction in public schools, even when multiple beliefs were being taught, with the permission of the parents? I'm thinking of McCollum v. Board of Education (1948). I don't know if they participated in that suit or not, but I do know that they have participated in suits attempting to suppress far less substantial expressions of Christianity, such as the Los Angeles County seal idiocy.But surely there's a very big difference -- a difference that First Amendment law has long made clear -- between what government agencies may say, and what private institutions and individuals (including churches) may say. Even many conservatives would agree, for instance, that government-run schools shouldn't teach specific aspects of religious doctrine (e.g., that Presbyterianism provides the proper theology, and all else is error and heresy); even Justice Scalia's opinion in the Ten Commandments case, for instance, was limited to government speech that took no sides within the Christian/Jewish/Muslim monotheistic tradition. Yet this tells us nothing about what churches or priests may say on their own. Mr. Cramer goes on to write:
Most people that aren't lawyers can see that the ACLU's mission hasn't changed since Roger Baldwin wrote that article about the Soviet Union.I've criticized the ACLU often before, probably more often than I've defended them. I'm sure I'll criticize them often in the future.
But, unfortunately, it seems to me that much criticism of the ACLU of the right reflects more by way of knee-jerk hostility than simply well-founded ideological disagreement. The four Derangement Syndromes I noted in the first paragraph (yes, the term is partly facetious; I don't think it's literal "derangement") have different moral qualities -- but what they share in common is a hostility that causes the speaker to miss contrary evidence, and to lose a sense of perspective. Bush has this effect on some; Clinton had this effect on some in the past; the NRA has this effect on some; the ACLU has it on some, too.
All Related Posts (on one page) | Some Related Posts:
- The ACLU and Bigoted Speech in Public:
- ACLU of Texas and Gun Rights:
- Why Do I Keep Blogging About Unsound Criticisms of the ACLU?...
- More Hostility to the ACLU Seemingly Blinding One to the Facts:
- ACLU Derangement Syndrome:
- New York Civil Liberties Union vs. "Unwanted, Abusive, and Intrusive Military Recruitment Tactics":...
- More on Nebraska ACLU seeking gag order on the press:
- Nebraska ACLU and lawyers' ethical obligations:
- Nebraska ACLU asks for injunction against speech:
I thank you for your interesting post. I think of myself as a civil libertarian, yet even I see that in a few instances ACLU takes its position to an extreme to threaten other freedoms. Unlike yourself, I am more likely to defend the ACLU then criticize it. But any person who places utter loyalty or complete hatred towards an individual or an institution either has to subsume their own beliefs to him or will be very disappointed. Those we disagree with are not always and those we agree with are not always right.
Once again, I thank for making this interesting point.
Noah
Dave
I, however, thought it was a good little riff, and was most apparently a relatively throw away line. The apparent "Aha That's It!" Has the tinge of sarcasm and yet truth.
You're certainly entitled to see ACLUDS where you think it exists, but I guess I just disagree. Wish you the best.
I also pointed out that this decision--which is both a serious criticism of the ACLU, and an important decision about Ten Commandments cases--received no discussion from a number of law professors who blog, and some of whom had mentioned the very harsh criticism in Kitzmiller--and they were informed of it.
Why is the ACLU largely exempt from criticism by law professors for its fanaticism?
Sure that 1960 ACLU member might take the high road and say everyone deserves a defense, even if they have none.
But how do you think that 1960 ACLU member would react if you told them the ACLU would be busy pissing away its credibility trying to get the Boy Scouts thrown off city land in San Diego because the group wouldn't allow homosexual scoutmasters? Once he knew where the organization would wind up in 2005, do you think that 1960 member would agree with you on relying on the reasonability of the ACLU's leadership? What sorts of causes will the ACLU invest itself in when villanizing the Boy Scouts, ostracizing Christians, and securing the release of dangerous enemies in a time of war has already been done?
The ACLU has been a joke for more than ten years. It's a shame, because the group really did champion some worthwhile causes every once in a while, despite themselves.
I suppose then, that any diagnosis then of "DS" is unassailable. After all, if well-foundedness is delusional, then how can the supposed delusional, ever convince someone else that his or her position is genuinely well founded.
Is there a corrorally "defensiveness syndrome" which senses delusion where there is not?
Or perhaps, who gets to be the impartial arbiter of delusion or not, is it an office? Who can we vote in.
the UCLA is not the tightly organized conspiracy that its detractors tend to think it is.
As an Oregonian spectator of PAC-10 sporting events, I'd be inclined to think it is ;)
Seriously- the ACLU has recently gone to court to defend the rights of Christians: here.
There are more instances of that kind of stuff. People really do suffer from that derangement that Eugene noted above.
If people don't like flag burning, bans on government enforced prayer, or forcing states to provide counsel for indigent defendents then their anger should lie with the US Constitution and the Judges who interpret it.
This is the point. I disagree with many of actions you say the ACLU have taken against the Boy Scouts, for child molesters and so on. Yet this does not mean that they are trying to destroy Christianity.
Some Guy quotes the section of the Sixth Circuit that defines what the ACLU attempts to do with religion. It says their "mission is 'to ensure that . . . the government [is kept] out of the religion business.'" This is not the destruction of Christianity. I disagree with their ultimate aim here, because it is not only not practical, but also ignores the fact that over 90% of Americans are religious. We take our religion seriously. The goal of the ACLU is to enforce Jefferson's "wall of seperation." Yet the Court has not agreed with their position to wholly separate religion from government.
But if some future legislature or future society feels that it is more appropriate to enforce that wall are they trying destroy religion? I would posit no. The strength of religiousity in the United States has been that the government does not form an opinion on religion. People are able to make that choice. That is why we feel so strongly about our religions because we choose them for ourselves. I agree with the ACLU's trying to get public prayer out of school, because prayer in school, while practiced from the earliest part of our history until the court struck down, is an infringement on this choice. I disagree with the ACLU extending the non-establishment clause to student organizations for religion, because this is exactly what the freedom of religion is supposed to encourage and allow.
Noah
It is reprehensible that the ACLU is making the argument that adults have a right to have sex with minors (and in the Limon case, it was the adult who was charged with a crime—not the minor) and that what is effectively an instruction manual in how to get away with molesting children is constitutionally protected free speech. If being angered by falsification of history and distortion of the Constitution constitutes "ACLU Derangement Syndrome," we need more of it.
I gave you a link to the decision. Show me that I'm wrong. The language is pretty clear, because the ACLU is, in fact, not a reasonable entity. It represents fanatics, of the sort that claimed the sight of a Ten Commandments stone in a public park in Michigan caused her "physical pain." Do you believe that?
That is the whole point behind this thread. The ACLU Derangement Syndrome. This is only a political and legal organization. Don't agree with them, if you don't agree with them. But don't demagogue them. They are what they are and REASONABLE people can disagree CIVILY about the positions that they advocate. You don't agree with almost all time. I agree with them some times and disagree with them other times. You might agree with the Concerned Women of America most of the time. I don't agree with them most of the time. But that does NOT mean that the CWA is an organization that is composed of Nazis trying to give the state control over women's bodies. If we can agree to disagree civily then maybe we can move closer to agreement on more substantive issues.
Noah
I pretty much agree with you.
My point was that, there was a touch of sarcasm, and yet that touch of truth, that even many readily admit that the ACLU goes overboard. Doesn't mean the ACLU is going to attempt to ban Christianity, but just that those who don't like the ACLU can take a little chuckle at the line. And think of how crazy the ACLU can be at times.
I think the poster who pointed out the local chapter nature of ACLU was probably right, The ACLU like many organizations has a range of opinions and the 80% or whatever that they do that goes unnoticed or I agree with, I tend to expect, but the over-the-top 20% is more obnoxious to me, then the countervailing 80%.
If I understand you correctly, I agree--all this talk of "syndromes" is pretty silly.
Indeed, Volokh states: "what they share in common is a hostility that causes the speaker to miss contrary evidence, and to lose a sense of perspective." Of course, we all do that sometimes (let our emotions get the better of us and as a result we end up overlooking contrary evidence and losing perspective).
So, I think it is fine to suggest to someone, during the course of a discussion or debate, that they might be overlooking something or losing perspective--as long as one then explains exactly what one thinks this person is overlooking. But accusing people of having some sort of "syndrome" that renders then generally incapable of rational thought really deosn't advance the cause of civil discourse.
If the ACLU wants to promote a particular agenda, they have that right. But because judges so often accept the ACLU's arguments--no matter how clearly incorrect--the ACLU has transformed the United States for the worse.
This being a blog of lawyers, let me say that I am not promoting legal action against the ACLU. I am, however, predicting that they can destroy themselves by making themselves even less popular with normal people.
BTW, the ACLU's mere existence is enough to cause a chilling effect, even in issues where reasonable people would mostly agree there was no problem. All it takes is the local getting interested.
And, if I recall my ACLU pitches correctly, "chilling effects" are damn' near actionable by themselves. Unless they're useful, of course, when we politely pretend they aren't happening.
The worst thing--for ACLU public relations--is talking to members. They make even the most over-the-top official statements sound like they came from Dr. Dobson.
I would agree with this. Consider the recent controversy over Salt Lake City's transfer of a portion of Main Street to the LDS Church (background at http://deseretnews.com/dn/view/0,1249,635171857,00.html). After the ACLU's challenge to the city's decision was smacked down by the 10th Circuit, the local branch was all ready for a Supreme Court Appeal. The grown-ups at the national headquarters correctly decided that it would be a waste of time and money and declined to file an appeal.
Was this an example of anti-Mormon bias on the part of the Utah ACLU leadership? Hard to say, but their Ahab-like obsession with the Plaza issue over the past 6 years has created precisely that impression among many Mormons here in Utah.
"But because judges so often accept the ACLU's arguments--no matter how clearly incorrect ..."
So if the ACLU weren't making these "clearly incorrect" arguments, judges wouldn't accept them? Wow, I need to join an organization like that, so judges will accept my arguments entirely without regard to whether they are correct.
Back on the main topic, the ACLU isn't the only party in this nation that has spoken on this topic. Here's what that noted radical Sandra Day O'Connor had to say about it this year:
I know it's a dreaded policy argument sullying the purity of sterile constitutional doctrines, but it's the most persuasive thing I have yet seen written on the subject.
I can see why the ACLU got involved with lawsuits against mandatory prayer in public schools--but when they threaten to file a lawsuit against Los Angeles County because there is a tiny little cross on a mission in the county seal? That's a historic reference, and is no more an establishment of religion than the presence of the classical goddess Pomona (also removed after threat of lawsuit).
There are legitimate arguments about what constitutes obscenity--but the ACLU was prepared to argue that virtual child pornography is Constitutionally protected. This is a position that is historically indefensible, and shows what lunatics run the organization.
I think the ACLU, while still sometimes taking on an important watchdog role, has been infected by politics and money (large contributors) and has recently become much more activist politically. Certainly we can agree that one's support or opposition to them is affected by personal opinion. I do think it would be a fair assessment to claim that the ACLU does have a secularist agenda, while it can be debated whether or not it has deviated very far from ACLU founder Roger Baldwin's beliefs.
If you want an example... What about an ACLU suit that resulted in a threat to imprison persons offering Christian prayers:
State to appeal ruling that limits prayers in House
Threatening to jail those who pray seems to be a rather dramatic example particularly since the national legislature is exempt from these sorts of restrictions.
So if the ACLU weren't making these "clearly incorrect" arguments, judges wouldn't accept them? Wow, I need to join an organization like that, so judges will accept my arguments entirely without regard to whether they are correct.
Clayton wrote:
It's called peer pressure. It may also be because judges don't have the time to check whether the claims being made to them are correct or not. For example, Lawrence v. Texas (2003) contained some claims about the relative recency of specifically homosexual sodomy laws that took about 20 minutes for me to demonstrate were false.
Peer pressure? So the ACLU is to federal judges as smoking and drinking teenagers are to their peers? Again, I really do need to join an organization that has such a fearsome influence.
As to Supreme Court judges and their clerks not having the time to check claims that you could disprove in 20 minutes, I guess the Republican presidents that appointed nearly all the sitting Supreme Court justices were also suffering from the dread ACLU peer pressure in appointing those justices instead of appointing you.
By the way, I'm being charitable in assuming that the problem is "not enough time to check for accuracy." Realistically, judges figure out the result that they want, then send their clerks out to find the justifying precedents and arguments.
The ACLU though is not in anyway consistently opposed to religion though its opponents often portray it that way. Therefore this is not some mere good humor but in fact a unfair slam.
The ACLU consistently supports individual religious liberty as well as anti establishment cases.
More generally its positions can be found here
Agree or disagree, it can hardly be characterized that such positions could be construed to support a suit about the existence of any particular god.
Antinome
"Notwithstanding the general progress made within the two last centuries in favour of this branch of liberty, &the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Govt. &Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst. And in a Govt. of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new &successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion &Govt. will both exist in greater purity, the less they are mixed together."
James Madison to Edward Livingston, July 10, 1822
Really? Can you show me where in the Federalist Papers Hamilton, Madison, and Jay argue against the use of Photoshop? Can you give me a specific cite where Jefferson and Frankin opposed the use of age regression software?
Seriously, there's is nothing "lunatical" about the arguement that the posession of digitally-generated sexually explicit images of minors (which do not depict actual persons) is not inherently illegal. I respectfully respect your right to call such "virtual" images repulsive and perverted (and in fact, I would generally agree with that assertion), but I also like the idea that there is an organization out there willing to fight for someone's legal right to dissagree.
Also, Clayton, I'm not one usually to harp on factual errors in postings, but O'Connor was the sixth vote on Lawrence v. Texas; she could have voted consistently with her position in Bowers v. Hardwick, and the Texas law would still have been stricken from the code.
As someone else noted, Derangement Syndrome does seem to be quite common on all-message boards. For example, Duncan Frissell's post above suggesting that the ACLU wanted to jail Indianans who prayed in public. No, no, Duncan, that might work on O'Reilly or on talk-radio, but we all can investigate here and see that what we've got is a ACLU suit to stop state-sanctioned prayers from kicking off sessions of the Indiana legislature. If anyone goes to jail here, it will be because he violated a Federal Court's order -- and if we cannot agree on that, then there really isn't much to talk about at all. Ask that nitwit judge from the Alabama Supreme Court how well that worked out for him.
We've already seen one recent example--the lawsuit against the Indiana House of Representatives in which the objection was not that the invocation was ALWAYS Christian, but that Christian clergy dominated the giving of the invocation--and that sometimes (a minority of the invocations), the prayer was explicitly Christian.
I could understand if the objection was that particular denominations or religions had a monopoly, or it a particular denomination or religion had disproportionate "air time," but the judge's decision complained that Christians were dominant. Well, what's the surprise? It is Indiana--where Christians are also dominant among the voters.
There are cases where the ACLU has argued that a creche is a religious symbol--but a menorah is not. Fortunately, even the federal courts weren't prepared to go along with a lie that outrageous.
And Justice O'Connor, at least, believed that her vote in Lawrence WAS consistent with her vote in Bowers.
I don't have cites but the ACLU has has been promoting bans on public sectarian prayer by military chaplains, bans on grace at service acadamy meals (including grace said privately by the cadets), bans on proselytization of unbelievers by military chaplains or other service members (even though advocates of communism, the New York Yankees, the Ford F-250 pickup, or Metallica remain free to proselytize in the course of their military service).
They also have advocated injuctions against the private use of certain words in the California Car Rental discrimination case and the publication of names and contact information of licensed professionals offering reproductive health services in the Oregon "Nuremberg Files" case.
When you wrote "Those Awful Somdomites Derangement Syndrome", you misspelled 'Sodomite' the same way the Marquess of Queensberry did when he left his card at Oscar Wilde's club inscribed "To Oscar Wilde, posing as a somdomite", an act that led to not one but three trials. (Wilde sued Q. for libel twice, with the first a hung jury and the second a loss for Wilde. The evidence Q. offered that his imputation was true was enough to put Wilde on trial for gross indecency.) So is your idiosyncratic spelling a coincidence or an obscure legal-literary allusion?
Yes, we were nerds of the Alito-variety.
Sad to say, the longer Supreme Court Justices sit up there, the farther left they seem to get. Justice O'Connor is a good example. Do you suppose that anyone would have guessed, in 1981, that she would be the vote that struck down Texas's homosexual sodomy law?
By the way, I'm being charitable in assuming that the problem is "not enough time to check for accuracy." Realistically, judges figure out the result that they want, then send their clerks out to find the justifying precedents and arguments.
---
Assuming arguendo that you are right about all that, your argument proves far too much, as that level of widespread and thorough-going judicial misconduct goes far beyond anything the ACLU could sanely be held accountable for. But your willingness to blame them for it does illustrate E.V.'s original point nicely.
But I'm sure that is just a coincidence.
Inherently illegal? No, that's why Congress passed a law to prohibit it. They made it illegal because:
1. The presence of such materials may encourage those with a prediliction towards molesting children to do so, or to take obscene pictures. If you can't tell that it is digital retouched, then, at least from the standpoint of making a pedophile feel "normal," it might as well be real.
2. Pedophiles use child pornography as a tool for persuading children to get undressed, or to have sex with adults. "See? Other kids do this." I've blogged a few news items over the years in which that has been exactly the mechanism used by pedophiles.
The law in question didn't punish anyone for disagreeing with this. It punished them for making child pornography, even if the "child" was the result of clever image manipulation.
Duncan, Let's not pretend that everyone who disagrees with you is unable to knock down a straw man. And, I am dying to see that cite to the alleged case about bans on private prayers offered by cadets. Link me, seriously. Is it on the same web-page that said that a Texas high school was banning students from wearing red and green during the month of December?
1. They can't separate the legal questions from their personal opinions about the defendants.
Miguel Andres says examples of the ACLU defending Christians are the exceptions that prove the rule. He is absolutely right. Its just that he doesn't know which rule he is proving.
In a majoritarian republic, obviously the civil liberties of mainstream, popular groups aren't going to be frequently threatened by authority figures. Christians are rarely censored by the state for private speech, and so they are rarely candidates for ACLU defense. Obviously, the people whose cases do raise interesting questions about freedom of speech and due process are frequently going to be unpopular people who might even be engaged in questionable activity. Those are the kinds of people whose rights are infringed by the state. Its not about whether you like the KKK or NABLA or Padilla, I doubt very seriously that the ACLU lawyers who have defended them are big fans, its about whether you like the first amendment and due process, and whether you have the intelligence to recognize that those things don't go away just because you hate the defendant.
2. They don't understand the difference between private speech and tax payer funded speech.
The ACLU has drawn a very clear line in the sand about where they think the establishment clause begins and ends, and they have litigated that line. Is this the right place to draw the line? Maybe not. However, the other side doesn't want a line at all. They'd like nothing more then a return to the pre-civil war days of state level bans on Catholics holding public office, etc... Because they aren't willing to make a counter arguement, they have to twist a rule which prevents them from spending my tax money on the practice of their religion into a limit on their personal freedom of speech, and they have to repeatedly accuse the ACLU of not having a line either, despite the fact that their case history shows that they do have one.
Can I spend your tax money on public satanic rituals? What if most of the people in my local community are satanists? If not, then where should the line be with respect to the establishment clause? These kinds of questions aren't raised because the ACLU's detractors aren't interested in a fair legal playing field. They are interested in dominance for their creed.
3. So far to the right they don't know where the center is.
If you think abortion is clearly murder and reasonable people cannot disagree about that then you must accept that the vast majority of the people in the United States are unreasonable. Most people in this country do not subscribe to the view that abortion should be illegal in all circumstances. In that light, SURE the ALCU looks like a mouth breathing radical organization, but so does everything to the left of Bill Frist including a significant percentage of the Republican party. You know what they say when you're the only one whose not crazy?
With respect to Derangement Syndromes, it appears we agree.
Federal court orders are not magic. They can't convert an illegal restraint on the natural liberties of the American people into a legal restraint. They remain a judge's opinion and we remain free to ignore them.
Any imprisonment for prayer remains an imprisonment for prayer and an example of official suppression of (non-dangerous) religious practice which is what was called for by Eugene's original question.
Can you point me to anyone who wants a ban on Catholics or Jews holding public office? Even one person?
It is one that has no historical basis. It is one that the ACLU made up by playing telephone--and relying on precedents that the ACLU would find abhorrent today.
First, as to the idea that ACLU is a group of such power and weight that it can pressure the Supreme Court to uphold actions and approve of arguments that are "inccrrect," this is a silly argument. It is you who believe they are incorrect not the court. The ACLU is like any other group petitioning the court. Its arguments are made, questioned and then the court makes its judgement.
Second, as to your belief that the history of this country demonstrates that the Supreme Court is wrong in its position on the establishment clause, I believe that you are also incorrect here. The history of the U.S. is one of the government giving aid to religious schools and taking other actions that would no longer be considered constitutional. The history of the U.S. also has other instances of our government endorsing or specifically encouraging activities that we now consider to be unconstitutional, such as slavery, Jim crow, and privacy, the importance of warrants, the requirement of a lawyer for the indigent. I have always considered these rulings by the court as the ultimate fulfilment of the constitution and so I feel with the court's action in the past 40 years. The Court recognized that the government was establishing religion with the laws that it made and corrected that. That does not mean we should go to far in the other direction, but that because it was done in the past in no defense for unconstitutional actions.
NOah
Assuming arguendo that you are right about all that, your argument proves far too much, as that level of widespread and thorough-going judicial misconduct goes far beyond anything the ACLU could sanely be held accountable for.
You replied: How about if their briefs make those arguments?
But you omitted what we were talking about, which was YOUR argument thats: (1) "the longer Supreme Court Justices sit up there, the farther left they seem to get...."; and (2) "Realistically, judges figure out the result that they want, then send their clerks out to find the justifying precedents and arguments."
----
The ACLU is not arguing in their briefs that Washington pressure does or should make judges leftists, or that judges do or should should pre-determine results and then send their clerks out to find justifying precedents. You are arguing that. And I am simply saying that if you are right, then the problem is much broader than just the ACLU.
If the federal court order is upheld or denied cert., then it's pretty damn legal with regard to the parties to the case. In fact, I'd argue that this was kind of the basis of legality as we know it. In my practice, if a court says "you violated this patent, pay XX" and that is affirmed or not appealed or whatever, then you have violated that patent and you must pay XX.
And no one here is going to go to prison for contempt anyway, fined maybe for violating an order, but not prison. Easy, fella.
I really love the reflexive property you've employed in your last paragraph, "any imprisonment for prayer remains an imprisonment for prayer." I'm just going to justify all of my arguments by announcing that 1 = 1 and therefore I'm right. Talk about suppression.
"I didn't forget at all. It is a reminder of the enormous power that the ACLU has with the federal bench, even when they are wrong on historical grounds and public policy grounds."
Translation: Clayton Cramer disagrees with the ACLU on these issues.
And when you suggest that a decision is wrong because only ten percent of the American people would agree with the legal holding, I'm afraid I am utterly lost by your logic.
Tranlation: Clayton Cramer disagrees with the ACLU on those issues.
Interesting hypotheticals, but there were situations pretty close to this in the San Francisco Bay Area a few years back, where pagan religious symbols ("peace poles") were put up at one of the local public schools. A lot of Christians weren't happy about it, but hey, it's the Bay Area. Christians are the minority.
There are Wiccan chaplains in the U.S. military. This should tell you who the tolerant ones are in this society.
Most people in this country also don't subscribe to the view that it should be legal to pull a nine month fetus part way, stick scissors into its skull, and then suck the brains out. But that's the ACLU's position--that this should be lawful, and they've gone to court repeatedly to protect something that is only a few inches short of infanticide.
But here's the difference: the ACLU trusts the people so little that it has demanded that the courts take the right of the voters to determine what level of regulation is appropriate--and by so doing, poisoned the discussion. Even pro-choicers like Ginsburg acknowledge that Roe v. Wade ended what was beginning to be a state-by-state liberalization of abortion laws.
At the same time that the ACLU is defending even the most absurd examples (partial-birth abortion) of a right that is only implied in the Constitution--it refuses to challenge even the most absurd laws that directly contradict an explicit Constitutional provision.
Jim Crow was also unconstitutional--and there was a specific amendment that prohibited it, also. Unfortunately, the best lawyers worked for the segregationists for many years, and it showed.
If you want to argue that the ACLU has made the Constitution what it was all along--please show me some evidence that the Framers intended child pornography to be legal.
If this is just, "I like the results of what the ACLU accomplishes," that's not the same thing.
Mr. Cramer's satire was broad, even Coulteresque, but he characterizes the ACLU more accurately than does Professor Volokh. The latter atypically relies on name-calling — which is all that "ACLU Derangement Syndrome" is.
Except that I didn't say that. I said that it was wrong because the historical evidence shows that obscenity was never understood to have been protected by the First Amendment. The ACLU's belief that freedom of the press and freedom of speech implied that one could not be punished for what you wrote or said is simply fantasy. Freedom of the press and freedom of speech were guarantees against prior restraint. Libel, slander, obscenity, incitement to riot, certain speeches in wartime--all of them are forms of speech, and yet all of them would qualify as criminal matters to the Framers. (We still have criminal libel laws in about half the states, and some of them are being misused as I write this.)
You write: defending even the most absurd examples (partial-birth abortion)
*sigh*. Look, as far as policy goes, the bulk of such abortions are done to protect the life or health of the mother. Plus, even if my factual assertion were wrong, the Supreme Court has sided with those who have argued that states that want to restrict such abortions must provide an exception for the life or health of the mother. You are free to disagree, but you come across as... not wanting for self-confidence when you argue that that view is legally "absurd."
it refuses to challenge even the most absurd laws that directly contradict an explicit Constitutional provision.
Is that what this is about? That they don't engage in Second Amendment activism?
Also, a big point made by others, the ACLU is not a monolith. Demonizing an organization dedicated to fighting for unpopular rights enshrined in the Constitution and elsewhere as "Big ACLU" is unconvincing for this and other reasons.
Can we please stop with this whole "my constitutional interpretation is more originialist than yours" and "my founding father could beat up your founding father" pissing match?
I do love the "the best lawyers worked for the segregationists" argument, how it strips away responsibility for the conditions of Jim Crow from any authority--the courts, the executive, the legislature... and also strips away the winning of the battle against Jim Crow that came from as many lawsuits as it did from laws. (That amendment banned poll taxes, not segregation.) It's sort of a "Mississippi Burning" for constitutional law; the FBI agents were the heroes, when they were not busy spying on Dr. King.
Then go outside your law school. Walk down the streets, and ask people passing by their opinion on these two items. If you get to 50 without one of them threatening you--or perhaps actually striking you--let me know.
The ban in South Carolina is frequently referenced by originalists as evidence that this was once a "Christian Nation." But, no I don't think that such a position is taken in seriousness by the Conservative Protestants, if for no other reason then that they've found embracing Catholics and Jews to their political advantage on shared interests. However, much like the legal issues surroundling NAMBLA, its not the example thats important but the Constituional questions. I don't think a ban on Catholics holding public office is Constituional. Do the originalists? Your reference to the democratic process that led to the change leads me to think that you do. I'd prefer to live in a society that protects fundamental freedoms from the excesses of majority.
With respect to the evolved understanding of establishment versus its interpretation 200 years ago, you answered my challenge by avoiding the central question. The establishment clause obviously means something. Where should the line be drawn? What is the difference between having an official church and having an unofficial church with all the same trappings? Is a Prime Minister not an executive in spite of the fact that he isn't officially recognized as one? How many trappings constitute an official church? Where should the line be drawn? I think orginalists choose to interpret the Constitution that way because it is the most conducive to their goals, rather then because it is the most rational way to think about the Constitution from an objective standpoint. This is the oldest system of government in the world. I think its important to understand why laws were written in the first place, and on many issues that purpose is the only one that matters. However, if we all agreed to read the Constitution the way Thomas does we'd write a new one the very next day, because it wouldn't mean what we think it means and it wouldn't reflect who we are today as a society.
Ahh, so that's your argument: the Constitution is an unchangable document (except by Amendment) and whatever was constitutionally unprotected in 1789 (and thus illegal) must remain constitutionally unprotected today. And if the mores of society change over time, that is irrelevant to your doctrine of constitutional interpretation, as the 1789 rules must still prevail. And anyone who legally argues otherwise (including what is now almost a century of evolving Supreme Court precedents) is an extremist?
"May encourage"... so in other words, the fact that some people think it could be so makes it a truism. I can't help but think of a saying popular among netizens: the plural of anecdote is not data.
As you know, showing child pornography to a minor is against the law. And I would agree with your argument that showing "virtual" child pornography to a minor should also be against the law. (And I suspect that the ACLU would also agree with those assessments.) But the question of reference is should mere possession (or creation without distribution) of "virtual" child porn (with no actual minors involved) be against the law, and this argument above doesn't seem to be on point to that question.
And yet several of the arguments made by other posters criticize the ACLU for defending NAMBLA's right to disagree. (Remember: the ACLU does not defend NAMBLA's actions, only its speech.) Would you then agree that the ACLU is correct in this position, or if not, where do you draw the line between legally defensible speech and action? (And would that have anything to do with how that line was drawn in 1789?)
It's also funny that you cite the virtual porn case, where the ACLU got the vote of that radical lefty Clarence Thomas.
Then go outside your law school. Walk down the streets, and ask people passing by their opinion on these two items. If you get to 50 without one of them threatening you--or perhaps actually striking you--let me know.
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Again, assuming arguendo what you say is true, you think any of that is relevant to constitutional interpretation why, exactly? We should decide con law cases by having votes of the populace, or more precisely votes of the populace that exclude at least some parts of the legal profession? Or is it that con law should be determined by what some combination of a vote and what you think you can prove in 20 minutes that a majority of Supreme Court judges can't find?
Beyond that, your bizarre beliefs about the extent of the influence of the ACLU continue to prove E.V.'s original point better than any dispassionate analysis could.
Try again. The problem was that the exception that the ACLU wants provides for any health concerns, not just serious health concerns, or long-term health concerns. What they want is an exception so loose as to make it meaningless.
No, it is about the ACLU having forgotten that ACLU stands for "American Civil Liberties Union." There are some specific rights guaranteed to us as individuals, and once upon a time, the ACLU devoted its considerable energies and abilities to defending those liberties. Sometimes, such as the Skokie March, they defended an unpopular group who had been wronged: they had been denied the right to use a public park in Chicago for their stupid neo-Nazi rally.
Unfortunately, ACLU lost something like one-third of their membership because they defended the Constitution--even for a bunch of idiots with swastikas. Shortly thereafter, they became just another leftist pressure group with a glorious past.
I could understand if ACLU chose to focus on only one set of civil liberties. But instead, they now focus on items for which there is no historical basis in calling them "civil liberties."
Except that I am not arguing that. If the mores of society change over time, then the people, through their elected representatives, or in some states, through the initiative process, change the laws accordingly.
The ACLU's actions are by definition anti-democratic. It is precisely because the "mores of the people" have NOT changed that Lawrence v. Texas (2003) struck down the Texas homosexual sodomy law.
Fortunately, I have a tinfoil hat so those lawyers and judges can't get to me. Nobody tells ME what to think.
The only person that I've ever heard suggest that voting should be restricted based on religion is Garrison Keilor, arguing that Christians shouldn't be allowed to vote in the U.S. (This was after the 2004 election, and he was in a bad mood.)
A federal ban would be clearly contrary to the Constitution; there's a specific provision that prohibits religious tests as a condition of holding federal office. With respect to state offices, some states still have religious tests (of a sort) written into their constitution, such as Pennsylvania. Has anyone challenged it? I would argue that it is constitutional.
I would prefer this as well. The ACLU's fanaticism, however, is eroding support for the idea of a Constitutionally-limited republic.
And thank you, Mr. Volokh. You couldn't have come up with a more compelling 'exibit A' if you hired him from central casting.
I will agree that there were a lot of other players in this. Certainly, intellectuals of the Progressive period (1900-16) played a big part in promoting the ideas that made segregation acceptable. Voters (especially once black voters could no longer vote in Democratic primaries in the South, and often not in general elections) have plenty to be responsible for as well.
I would prefer a Constitutionally-limited republic. But the ACLU's fanaticism in twisting the Constitution for their political causes makes that an increasingly discredited idea.
Things that constitute an establishment of religion:
1. Tax funding of one denomination to the exclusion of others. (Perhaps even disproportionate funding.)
2. Giving preferred legal status to one denomination over others. (Clearly, giving all religious organizatons similar legal status as a non-profit, isn't a problem.)
3. Requiring you to be a member of a particular denomination to vote or hold office.
Things that aren't establishment of religion:
1. Allowing government buildings to be used to promote or assist religious organizations, as long as every group has an equal opportunity.
2. Oddly enough, requiring one to subscribe to certain religious beliefs to hold office probably isn't "establishment of religion" (although I wouldn't support such a law myself). I say that based on both the Pennsylvania Constitution's requirement that officeholders take an oath believing in "one God," and this interesting provision of the New Jersey Constitution of 1776:
Pretty clearly, the notion of "establishment of religion" did not extend to requiring you to profess "the faith of any Protestant sect."
Right. Like when they sued to keep a little girl from reading the Bible, SILENTLY, TO HERSELF, on the school-bus. Yeah, just like that.
I have managed to refrain from any personal insults, but I believe I can say that such a belief shows you be quite naive.
The ACLU supports SOME rights... the rights they choose to, primarily "speech" (which has, over the years, been expanded to include all kinds of amazing things) and "the right not to get as punished as the law law says you should, especially death". But they are, generally, very much anti-religion, particularly anti-Christian, as the record well bears out.
Some of the more egregious cases may well be local chapters. And the well-known cases may well be in the minority. Taking both of those as true, I STILL stand by my statement about them. Such extreme cases, even if few, are more than enough.
Some good does indeed come from the ACLU - but it is rare, and, on balance, not at all worth it.
One thing that would make people like myself (and probably Clayton) less agitated at them was if they were at least HONEST about their stance (many such groups exist). They claim to be neutral and aren't.
I dislike advocacy groups that are advocating things I strongly disagree with, but I recognize their right to incorparate and advocate things. What really gets my fire up is a group that claims to be advocating my rights when they are, in fact, advocating directly AGAINST my rights.
We all, in general, accept the premise that we are governed by 'the rule of law'. I proffer that the rule of law is not universal, but societal in nature, subject to the mores and folkways of a particular society. To whit, one would no more seek to impose Christian beliefs on an Islamic society than vice versa, though it seems the secularist viewpoint hopes for universal application. Being a non-Christian, my approach tends to be more philosophical than religiously oriented.
Strictly opinion here, but do we not venture down a dangerous path when we allow the rights of the minority in a society to be imposed to the detri