The future of the religion clauses in the current Supreme Court

The First Amendment to the US constitution says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The clause pertaining to religion states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” which means that there are two parts, what have come to be known as the Establishment Clause and the Free Exercise Clause. It is the Establishment Clause that has come under stress recently as religious zealots in the US, convinced that this is a Christian country, seek to make that manifest by having prayers at government functions, putting up Ten Commandments monuments in public spaces, putting mottoes like ‘In God We Trust’ on currency and elsewhere, and placing nativity scenes at Christmas time.

The US Supreme Court’s responses to the cases have been muddled, to put it frankly. They seem to struggle to find ways to accommodate at least some religious invasion of the public sphere, even if it leads to convoluted reasoning, possibly out of a sense that outright prohibition might cause too much of a furor.
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Federal appeals court sides with common sense and decency and against Trump

You may recall my earlier post with a video of a Department of Justice lawyer Sarah Fabian trying to defend the awful conditions that detained migrant children were being kept in (such as being denied soap, toothpaste, toothbrushes, showers, beds, and cloth blankets in very cold rooms with the lights permanently on) to an openly incredulous panel of three justices in the Ninth Circuit Court of Appeals.
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We need a nationwide teach-in on the First Amendment

The Hamptons is a very upscale region in New York state where the very wealthy live. Apparently residents who are supporters of Donald Trump are having to keep their allegiance a secret because their neighbors hate him.

President Trump’s Hamptons supporters have gone underground.
…

“We are all in the closet,” said a boutique owner in Southampton who fears reprisals from his customers — most of them moneyed Democrats — if he speaks openly about his allegiance to Trump. “It’s like you have this disease and people want to run away from you.”

A builder based in Westhampton worried that his customers would boycott his services if he reveals his support of the president. “People have really strong opinions here and if you go around wearing a MAGA hat, you really need to fear physical violence,” he said, adding the anti-Trump aggression comes mostly from summer residents.
…

“They’re all Democrats, so for us it’s a matter of survival,” said an art consultant who works in Sag Harbor. “We live in the land of the First Amendment, but if you want to stay in business out here, you have to keep your opinions to yourself. We are hitting a very dark and strange place as a country.”

What will it take people to realize that the First Amendment only guarantees that the government “shall make no law …abridging the freedom of speech”? In other words, the government cannot censor your speech (except under very limited conditions) and you are free to say that you adore Trump and to wear as many MAGA hats as you like, if that floats your boat. The First Amendment does not require other people to like you or approve of what you say or not criticize you or support your business.

What next for the Epstein investigation?

The death of Jeffrey Epstein in jail has caused a great deal of anger among his many victims who were hoping that his trial would serve to bring justice. They now fear that the whole investigation may shut down. If it does, there will be huge sighs of relief among all Epstein’s friends and associates. But the prosecutors in the case say that the investigations will continue. The vast scale of the sex trafficking of minors means that there had to have been other people involved. One of the charges against Epstein was a conspiracy charge and that means that other people’s roles were also being investigated.
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Florida county cannot ban invocations by atheists

This was the ruling from an appeals court that was handed down on Monday. Brevard County in Florida had passed a resolution justifying its policies that said that “an ‘invocation’ by atheists, agnostics or other persons represented by or associated with FFRF and [AU] could be viewed as County hostility toward monotheistic religions”” and thus could be barred.

The 11th U.S. Circuit Court of Appeals said Brevard County violated the First Amendment’s “Establishment Clause” by allowing clerics from Christian, Jewish, Muslim and other monotheistic religions and denominations deliver invocations at county commissioner meetings, while excluding atheists, secular humanists and others deemed outside the “mainstream.”

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Jeffrey Epstein may be in more trouble than we thought

It is a sad commentary on the state of the justice system and the presidency in the US today that immediately after the news broke that on Saturday the FBI had arrested convicted sex offender Jeffrey Epstein at the airport his arrival back in the US on his private plane, the question that was widely asked was whether he would again use his connections to get off with a slap on the wrist, like he did the first time. After all, Alexander Acosta who was the US attorney who arranged that sweetheart deal is now secretary of labor. Donald Trump has spoken warmly of his friend Epstein and of his fondness for especially young women. So the question was whether Attorney General William Barr who is the ultimate boss the US Attorney’s office in the Southern District of New York (SDNY) that brought the indictments would quash the investigation or Trump would pardon him. You can read a live blog of his arraignment that was held today.
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Reckoning for Jeffrey Epstein at last?

The case of Jeffrey Epstein is notorious because the serious charges against him of sex trafficking of underage girls was settled in a sweetheart plea deal kept secret from his accusers and that also placed many documents under seal. The US Attorney who arranged the deal Alexander Acosta is now Trump’s labor secretary. Many famous people were entertained by the wealthy Epstein. A motion by his victims to unseal the documents was approved by a judge last week. (You can see my past posts on the Epstein case here.)
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There are always grey areas in the law

A driver of a minivan in Nevada was pulled over by police because he was alone in a lane reserved for high-occupancy vehicles that require at least one extra person. His justification? He worked for a funeral parlor and he had a corpse in the cargo area in the back. While the police officer let him off with a warning, it appears that it is not at all clear if a dead body meets the requirement.

Nevada’s HOV rules do not clarify whether an occupant must be breathing and leans on federal law, which is not much clearer.

An official with the Federal Highway Administration said it is up to individual states to define what an occupant is – and referred the USA Today Network to the Nevada Department of Transportation for additional information.

The undercover hearse driver pulled over in Las Vegas Monday assumed the body in the back counted toward the two or more occupant requirement for the lane – but Nevada Highway Patrol says passengers must be alive and breathing in order to be counted.

“When you talk about high occupancy vehicle lanes, you’re talking about seats – so a person would need to occupy a seat to qualify,” said Nevada Highway Patrol Trooper Jason Buratczuk. “This person was obviously a decedent and in the cargo area of the car, so they would not qualify for the HOV lane.”

There seems to be a general rule that you can never make a law that covers all contingencies. New cases will always arise that fall in the grey areas.

Via David Pescovitz.)

Words did not do justice to Fabian’s performance

In an earlier post, I described how Department of Justice lawyer Sarah Fabian tried to defend the awful conditions that detained migrant children were being kept in, being denied soap, toothpaste, toothbrushes, showers, beds, and cloth blankets tin very cold rooms with the lights permanently on, to an incredulous panel of three justice in the Ninth Circuit Court of Appeals. There is now video of her exchanges with the justices and it is well worth watching as she tries to escape from the close questioning of the justices as to what children in captivity are entitled to.
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This is where you end up when defending Trump administration policies

If you work in the Donald Trump administration, you will find yourself steadily violating any ethical principles you might have started with until at some point, you end up not having even a shred of decency. That point was reached on Tuesday for Sarah Fabian, the justice department lawyer arguing before a US Appeals Court that the appalling conditions under which detained migrant children taken into custody at the US-Mexico border were being treated, such as keeping them in freezing cages where they had to sleep on the floor, were justified.

Fabian claimed that these children are not entitled to what most people would consider the most basic sanitary necessities. This was in a court case where the administration was sued that they were not complying with the requirements laid down under the earlier Flores guidelines for how children should be treated. (Incidentally, cases are always referred to by the names of the party or parties involved though Donald Trump, genius that he is, thought that Flores was the name of the judge who made the ruling and because it was a Hispanic name, concluded that it meant he was a biased judge.)
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