Wednesday, May 11, 2005

Sunday School

In the process of debating dingo about religious freedom, I proposed some hypotheticals designed to gauge the value one places on religious freedom. Dingo responded, and I agree with all but his last few sentences, which imagined Sunday closing laws somehow might burden American Muslims.

MaxedOutMama liked the quiz, and requested its re-posting, allowing a response here. Because I always obey Mama . . .
  1. A state law saying, in its entirety, "Before acquiring any real property, all purchasers must first recite, and agree to abide by, Job 31:32, or be fined not in excess of $50,000, and imprisoned not in excess of 6 months." Constitutional or not? Either way, identify the relevant Constitutional provision at issue.

  2. A law "requiring state residents who erect 90-foot tall statues of Jesus on their property must also install, within three months, statues of the exact same height and width depicting, individually, Abraham, Allah, Vishnu, Zoroaster and Confucius or be fined not in excess of $50,000, and imprisoned not in excess of 6 months." Constitutional or not? Either way, identify the relevant Constitutional provision at issue.

  3. So called "blue laws," in particular a legislative directive that forbids at least some commercial establishments from opening on Sunday "or be fined not in excess of $50,000, and imprisoned not in excess of 6 months." Now imagine three different quotations from the bill's sponsor in the "legislative history" leading to the law's adoption (assume each is definitive and accurate):

    • "Citizens of this state need more leisure time. Since this state joined the Union in [date], the mode day of rest has been Sunday. Building from this historical tradition, therefore, [these types of establishments] cannot open on Sunday."

    • Citizens of this state need more leisure time. This state has a Christian heritage, and the majority of the state's electorate is and long has been Christian, and the Christian day of rest is Sunday. So Sunday a good day for resting and, indeed, the most appropriate day for the Christian majority in the state. Therefore [these types of establishments] cannot open on Sunday."

    • "The Bible requires a day of rest -- called the Sabbath, established to promote prayer and reflection -- which the New Testament says is Sunday. Therefore, [these types of establishments] cannot open on Sunday."

    Same question for a), b) and c): Constitutional or not? Either way, identify the relevant Constitutional provision at issue.
Post your replies as comments (again, Dingo's response is here), and I'll clap the erasers.


MaxedOutMama's where the rubber meets the road, er, a, the Constitution trumps the complaints. And Jonah Goldberg is kinda on topic, as he answers Derb.


MaxedOutMama said...

1) RE: The requirement to swear to abide by Job 31 which reads:
"The stranger did not lodge in the street: but I opened my doors to the traveller."
First, this is IMO an unconstitutional taking, because it requires the owner of the property to make it available for use to anyone who is on the street. Fifth Amendment. Second, it is a violation of the First if the language used is referred to by a Bible reference and probably if just the exact Biblical language is used.

2)This is a violation of the First Amendment free speech provision (symbols etc have been ruled to be speech) and a violation of the Establishment clause because it prefers the symbols of certain religions. But while government may not compel such a thing, I do believe a person by private contract with a private association (homeowner's covenant) could agree to be bound by such a provision. It would be an interesting case. Such a provision would definitely be a constitutional violation if the clause were inserted into a public housing contract IMO.

3) In most cases such a provision would be upheld for A, B and C. The distinction is that the language within the bill itself does not include a reference to religion. If the language of the bill did, it would be struck on the basis that it was an establishment of religion under the First. One legislator's insertion of such comments into the legislative record with secular language in the bill itself is a different matter; courts look first to the language and then to legislative intent.

However, circumstances in any particular case might override that distinction. In the following cases I believe a court might block enforcement of such a law (even without any religious language in the legislative record) under the First and also the Equal Protection clause of the Fourteenth:
1) Selective enforcement against establishments that are clearly associated with a non-Christian religion. If, for example, a market providing halal meat to a largely Muslim population in an inner city were charged under the law while the law had been seldom enforced, the courts might find for the market. Facts matter to the court and they should.
2) Assuming the included for-profit educational services and a religious school with a nominal fee was being held on Sundays at a mosque or a building associated with a particular ethnic or a religious group. Enforcement of such a law against such an operation might be struck down under the finding that the law's enforcement was not to accomplish the stated purpose of the law but to quash a group activity, with the court observing that such functions are in effect little different than Sunday schools and that such enforcement constitutes de facto denial of equal and/or religious rights.

Both of the above examples might seem far-fetched but they are not. For some reason local authorities seem to be among the most power-mad tin-pot dictators. Montgomery County has now hired a high-priced law firm and may appeal the ruling in that case.

Anonymous said...

1. Unconstitutional: violates the First Amendment and perhaps Substantive Due Process. Government can force speech as a condition of government largess (Rust v. Sullivan), but not as a condition of real property ownership.

2. Unconstitutional: can't force religious speech on private property, or put another way, impose a condition on religious speech on private property. Taking? Government is not coming on your property, but either 1) limiting what you can do with it, as in zoning or 2) forcing expenditures, which it can do in some cases -- e.g. remediation. Maybe, but I think the religious component is dispositive.

3. Constitutional no matter what the leg. history. Of course could be lost if litigated as a purely religious gesture.

MaxedOutMama said...

Anon, the requirement to abide by the clause could mean a total taking in effect.

Carl, that Goldberg column is fascinating. This in particular rung true to me as one of the fundamental differences between the American right and the American left:
Comfort with contradiction

I mean this in the broadest metaphysical sense and the narrowest practical way. Think of any leftish ideology and at its core you will find a faith that circles can be closed, conflicts resolved.

That is true. The leftish thesis is that any injustice or unfairness (within the nation) constitutes a casus belli requiring government intervention. The left is perfectionist in spirit and thus undemocratic.