Apparently, all it takes for a crack at privileging religion is 25,688 individual signatures.

The North Dakota Family Alliance is working toward that magic number in order to get the Religious Liberty Restoration Amendment before North Dakota voters this November. If passed, this amendment to the state constitution raises the burden a governmental entity must meet before passing a law that strains individual religious beliefs.

To understand what exactly the amendment does, here’s some legal review:

Most laws, by their very nature, burden individuals. It is the reason society functions — we all give up a little for the greater good. Normally, to survive a challenge, a run-of-the-mill law must meet the rational basis test.

To pass the rational basis test, a governmental action be rationally related to a legitimate government interest. This is extremely easy to pass. For example, a law that outlaws spitting might be justified like this: the government has an interest in having clean streets and spitting covers the street in dirty mucus. Done. Almost any explanation works.

Skipping intermediate review, the highest level of review is strict scrutiny. In contrast to rational basis, this is an extremely hard burden to meet. Here, there must be a compelling government interest and the law must be narrowly tailored meet to that interest. Also, the law must utilize the least restrictive means possible. Almost no law survives.

Functionally then, to raise the level of review to strict scrutiny means that no law burdening religion can be passed and survive judicial review. Scary stuff.

North Dakota would not be the only state to have this kind of law in place. In fact, in 1993, Congress passed a law called the Religious Freedom Restoration Act (RFRA). This law was nearly identical to the now proposed ND amendment. RFRA was struck down as unconstitutional in 1997 via City of Boerne v. Flores as exceeding Congress’ federal enforcement powers under the 14th Amendment. Ever since the federal RFRA was struck down, similar state versions have popped up around the country.

The original RFRA and newer state versions are troublesome because they open the door to claims from individuals who wish to use religion to not follow laws. For example, a Christian might use the amendment to say a housing discrimination law burdens their honestly held religious belief that they shouldn’t rent to a gay person. Or someone might try to escape compliance with a drug law. It allows what Justice Scalia (of all people) feared in 1990 when he wrote in his opinion disallowing American Indian use of the drug peyote in Employment Division v. Smith, “to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” The original federal RFRA was enacted by congress as a direct response to Scalia’s opinion in Employment Division with the urging of both Americans United for Separation of Church and State as well as the ACLU– groups that see the law as a good way to strengthen the line between church and government by not allowing interference absent the most extreme circumstances. However, when the line separating church and state becomes so strong as to privilege religion, it has gone too far. Which I guess is to say, if you live in North Dakota, don’t sign that petition!

– by Brittany Meyer

It’s that time of year again — time to revamp the “religious winter holiday display on public property” debate. It’s a discussion that never seems to take a holiday of its own. This week, Leesburg, VA decided to decide and then decided to decide later whether holiday displays would be allowed on Loudoun County courthouse grounds this upcoming December. One side, the Courthouse Grounds and Facilities Committee wants to ban all displays. The other side, including many community members and Supervisor Eugene Delgaudio, thinks all displays should be allowed — apparently even atheist ones.

Holding aside my belief that there are bigger unconstitutional fish to fry and arguing about whether a “Merry Christmas” sign should greet us on court house steps only serves to make atheists look petty and without more important grievances, the case law on religious holiday displays is, in a word, wrong.

In Lynch v. Donnelly, a Christmas display including Santa and a nativity scene was challenged in the Supreme Court. The court found the display constitutional because taken along with the rest of the scene, it had the “legitimate secular purpose” of celebrating the season and the origins of Christmas.

In Allegheny County v. ACLU, two displays went up on the chopping block — a nativity scene and a Christmas Tree along with a Menorah. Here, the nativity scene did violate the constitution because it was alone and without other Christmas symbols, like a statue of Santa Claus. The Menorah was fine, because it was with a Christmas Tree.

I disagree with both of these decisions — the establishment clause prohibits endorsement of religion over no religion as much as it prohibits the endorsement of one religion over another. SCOTUS is not perfect (try as lawyers and law students might to convince themselves otherwise) and sometimes they get it wrong before they get it right.

Assuming then, legally, all a display depicting the virgin birth of the Christian savior need do to become ‘secular’ is be placed with an overweight man and his flying reindeer, Loudoun County is doing the diplomatic thing by deciding between all displays or none at all. Either of these options should be constitutional under any evaluation. It will be interesting to see what they decide.

According to an American Humanist Association press release,

Michael Newdow filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit requesting a panel rehearing or for rehearing en banc in the case of Newdow v. Roberts. The case challenges the oath administrator’s addition of the phrase “so help me God” to the constitutionally prescribed presidential oath and the inclusion of sectarian prayers in the invocation and benediction of the 2009 inauguration of President Obama and the 2013 and 2017 ceremonies.

U.S. District Court Judge Reggie B. Walton had ruled on March 12, 2009 that all plaintiffs in Newdow v. Roberts lacked standing to pursue such cases. And on May 7, 2010, a three-judge panel issued an order affirming Judge Walton’s order dismissing the case for lack of standing.

In English, Newdow is requesting a rehearing on his denial for a rehearing.

Now, some schooling on an unsexy part of US law:

In order to bring a law suit in the United States, three things must be true: (1) the plaintiff must have standing, (2) the case must be ripe for review, and (3) the case must not be moot.  If any of those three things are not true, the case is dismissed.

The Newdow case has already been dismissed once for lack of standing. 

Standing also has three requirements. A person bringing a suit challenging the constitutionality of a law must demonstrate they have suffered an ‘injury in fact.’  Plaintiff must also show the defendant, and not an intervening third party, is harming him.  Finally, plaintiff must prove that a favorable decision will solve their injury.  In legal terms, standing requires (1) injury, (2) causation, and (3) redressability. The Newdow case was dismissed for lack of standing because Newdow has been unable to prove injury and redressability.  In other words, the court is unable to answer “what is Newdow’s injury here”?  (The pain in his ears by hearing that toxic word God?)  Also, if he wins his case, will his injury be over?

Over the course of my brief time blogging here, I’ve become quite the gambler. I’ll gamble once again on this case:

Newdow has no standing, and the case will again be dismissed. (My apologies for disagreeing with Mr. Ritter of AHA — I’ve worked with him and he is a great attorney and almost always right). The only people with clear and unarguable standing in this case are the elected officials themselves.

Do I believe that the words “so help me God” included in a presidential oath and the inclusion of prayers during a presidential inauguration violate the Establishment Clause?  Abso-freakin-lutely.  But I also don’t see it getting struck down until an elected president challenges it before his (or HER!) inauguration.

And I’m not holding my breath for that.