Scott Walker proposes expanding the school voucher program beyond Milwaukee and Racine...

... to 9 new districts, including — gasp! — Madison.

Here's what Walker said last night in his budget speech:

For communities where some schools fail to meet expectations, we include an expansion of the parental choice program in this budget. Since wealthy families have a choice because they can pay to send their children to a private school, we give low income and middle class families an opportunity to also choose a viable alternative for their sons and daughters.

Interestingly, some communities have both high-performing schools, as well as some that fail to meet expectations. Green Bay is a good example. Keller Elementary in Green Bay is a school where more than 70 percent of students are economically disadvantaged, yet Keller Elementary exceeds expectations. In this budget, schools like this will be eligible for a performance reward. At the same time, in that same district, there are other schools that fail to meet expectations. Other districts like Madison, Beloit, Sheboygan, and West Allis/West Milwaukee have similar situations.

People in Madison like to think we have fabulous public schools, so it's rough seeing Madison grouped with those other places. And of course, people in Madison tend to loathe Governor Walker. Obviously, the liberal viewpoint is that if there's a problem with the public schools, more money should be given to those public schools, not diverted into private schools. Here's the discussion in the forum over at the Isthmus, where liberal Madisonians tend to talk amongst themselves (and where Meade injects a bit of the kind of diversity they don't celebrate). I love the way the separation-of-church-and-state topic is playing out. First:

Does it bother you that taxpayer money will be spent for sectarian religious instruction?

Someone else:

If my kid went to a school with overcrowded classrooms and wasn't getting the attention he or she needed for whatever reason, I wouldn't hesitate sending him to a Catholic school if I could for free. Would you? Would you put up with a crappy classroom just because you didn't want your kid to take a half-hour of Bible study each day? I don't know many parents who would in a similar situation....

A third person (boldface added):

I don't think anybody's really upset about vouchers to send kids to Catholic schools. The Catholic schools can't take many more kids, but they are run by local parishes and nuns with good intentions and without a profit motive. It's not foremost a constitutional issue but a quality one. We're upset about a bunch of profit-motive business types setting up private schools to make money for themselves by providing services that work poorly and exploit public funding the same way the University of Phoenix does with adult students. Why anybody thinks replacing so-called overpaid teachers with overpaid executives is an improvement beats me. And that's exactly what we'll get if we don't guard against it at every turn.

The lefties really hate business! Meade provides the comic pushback. Quoting "bunch of profit-motive business types":

But enough about the teachers' unions. School choice is coming to Madison. Choice is good.

Yoga in public schools — an Establishment Clause problem.

NPR has trouble seeing the objection. This kids are stretching, readying their minds for learning, don't you know? But here's one mother's report:

"They were being taught to thank the sun for their lives and the warmth that it brought, the life that it brought to the earth and they were told to do that right before they did their sun salutation exercise"...

The woman, Mary Eady, was able to take her son out of the classes — which is an appropriate accommodation but insufficient to solve an Establishment Clause violation. (In the old prayer-in-school cases, excusing the students who chose not to pray did not suffice.)

The school's program was richly funded by the K.P. Jois Foundation, whose Hindu founders connected yoga to their religion.

"It's stated in the curriculum that it's meant to shape the way that they view the world, it's meant to shape the way that they make life decisions," Eady says. "It's meant to shape the way that they regulate their emotions and the way that they view themselves."

"And then the question becomes — if it is religious, which it is, who decides when enough religion has been stripped out of the program to make it legal?" [says Dean Broyles, president and chief counsel of the Escondido-based National Center for Law and Policy]. "I mean, that's the problem when you introduce religion into the curriculum and actually immerse and marinate children in the program."...

"It is the stated goal of both the Jois Foundation and the district itself to prove scientifically that Ashtanga yoga works for kids here in the district and then export it nationally," Broyles says.

The Jois Foundation has a director, Eugene Ruffin, who is himself Catholic and who says the values taught in the program aren't specifically Hindu. But making religion generic doesn't solve your problem. Consult the original Warren Court school-prayer case, Engel v. Vitale, which involved a prayer concocted by the state that stripped out all denominational specificity.

My position — explained here in the context of Kwanzaa — is that the government should not use schools for exercises that reach into the spiritual aspect of the child's mind. Quite aside from whether courts would see an Establishment Clause violation, it should be rejected as a policy choice. Even where you have trouble deciding whether something is religion or not, if it's a religion substitute, operating like religion, you should be revolted by the government intruding into the sphere that belongs to the individual, parents, and private organizations. And on this ground, I would object to all sorts of indoctrination and idol-worship. Public schools must be committed to teaching real substance of the secular kind. Think: math and science.

ADDED: Imagine if a Christian foundation were handing out huge grants to public schools to adopt a program based on its values, with generic prayer-like incantations led by the teacher. Would NPR and its devotees be nodding calmly at how nice it was?

ALSO: NPR quotes the mother's attempt at paraphrasing the prayer-like incantation. I'd like to see the actual text that the school uses! Here's some material at the Jois website, but it doesn't show the text I'm looking for.

Wisconsin state senator Glenn Grothman caught up in a flap about Kwanzaa.

CNN's Ashleigh Banfield and Roland Martin pile on.

Here's Grothman's press release — PDF. I had to wonder why a state senator was attacking a holiday that some people like to celebrate. What business is it of his? He talks about the origins of the holiday (which I haven't independently researched) and asserts that it's not a "real holiday." But so what? It's usually just not a very good idea to make pronouncements about the truth or falsity of other people's religions. He ends the press release with the statement: "Be on the lookout if  a K-12 or college teacher tries to tell your children or grandchildren it's a real holiday."

Okay, is something going on in public schools? Are they celebrating Kwanzaa? That would obviously be wrong — a violation of the Establishment Clause. But Grothman seems to be merely saying that teachers might be teaching about Kwanzaa in perhaps a social studies lesson about the various holidays that are celebrated. I suppose we should be alert to whether teachers are feeding schoolkids inaccurate lessons, but the characterization of Kwanzaa as a holiday isn't an egregiously incorrect fact.

We could go deeply into the subject of what makes a holiday a real holiday and debate about whether Kwanzaa is in or out. It depends on how you define holiday. Or we could debate about what constitutes a sound social studies lesson. We don't want kids to hear that white people celebrate Christmas and black people celebrate Kwanzaa or that Africans arriving in the New World brought a Kwanzaa tradition with them.

Grothman ought to give us the specifics about defective lessons in schools and aim the criticism right there. Don't just tell us to be on the lookout for teachers who might dare to refer to Kwanzaa as a holiday.

"A federal court in Indiana has rejected atheists’ requests to preside at wedding ceremonies..."

"... saying only clergy or public officials are licensed to solemnize marriages."

A lawsuit filed by the Indiana chapter of the Center for Inquiry argued that an Indiana law that requires marriages to be “solemnized” — made official by signing a marriage license — only by clergy, judges, mayors or local government clerks — violates the Constitution.

If you don't want a religious officiant, you're forced to use a government official. In Indiana.

May I suggest Colorado, where you can be your own officiant?

"A touchy subject!"

 

That's a "Calvin & Hobbes" strip from 9/11/92, pointed out by a student in my "Religion & the Constitution" class.

Here's a great tool for finding vaguely remembered "Calvin & Hobbes" strips (if you have a key word). Here are a couple other separation-of-religion-and-education strips, focusing on the Pledge of Allegiance.

Gift idea: "The Complete Calvin and Hobbes." (Generic gift-buying portal for making no-cost-to-you contributions to the Althouse blog: here.)

And thanks to Rusty, commenting in "What sort of man walks the streets of Madison with a camera strapped to his head?": "Meade looks like Hobbes. In Calvin and Hobbes."

"Freedom From Religion Foundation sues IRS for not enforcing electioneering restrictions on churches."

"The lawsuit cites 'open and notorious violations' of these electioneering restrictions by churches since 2008, including 'blatantly partisan full-page ads' from the Billy Graham Evangelistic Association that ran in papers throughout the country leading up to the Nov. 6 election."

In the ad, Graham urges people to vote "for those who protect the sanctity of life and support the biblical definition of marriage between a man and a woman."

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, says, "Everybody knows what he was talking about: Obama endorsing same-sex marriage."

Full text of complaint at the link.

"In California, a war memorial cross that once stood on a rocky hilltop in a national park before being deemed unconstitutional and ordered removed was being resurrected..."

"... in the stunningly stark Mojave desert, marking the end of a longstanding legal dispute that had become entangled in patriotism and religion...."

The settlement approved by a federal judge in April permitted the Park Service to turn over the acre of land known as Sunrise Rock to a Veteran of Foreign Wars post in Barstow and the Veterans Home of California-Barstow in exchange for five acres of donated property elsewhere in the 1.6 million acre preserve, about a four-hour drive east of Los Angeles.

The donated land was owned by [Henry] Sandoz and his wife, Wanda, of Yucca Valley.

Sandoz has cared for the memorial as a promise to World War I veteran Riley Bembry, who with other shell-shocked vets went to the desert to help heal and erected a wooden cross on Sunrise Rock in 1934....

Sunrise Rock wasn't part of the Mojave National Preserve until 1994, putting the Christian symbol on public land. The ACLU brought its lawsuit in 2001.

Clarence Thomas rejects the idea of a judge having a methodology of constitutional interpretation.

Or so it seems. He said:

“You’re supposed to say there’s some angle, some methodology you’re pushing... There’s originalism. There’s textualism. All these useless peripheral debates other than just doing our jobs as best we can.”

Just doing my job as best as I can. That's the modest-selfless-judge methodology... the methodology that dares not call itself a methodology... the methodology embraced by every Supreme Court nominee when he/she comes before the Senate Judiciary Committee ... at least ever since that one guy got borked.

Thomas was interviewed by lawprof Akhil Reed Amar — who has a new book out, "America's Unwritten Constitution: The Precedents and Principles We Live By." I bought that and I recommend it. I got the Kindle version, which allows me to tell you that it contains only 2 mentions of Justice Thomas by name. There's an endnote at 551 about the "contrasting visions" of Brown v. Board of Education "on pervasive display" in the 2007 school integration case Parents Involved in Community Schools v. Seattle School District No. 1, referring to Thomas's "politically conservative reading." And there's a reference, on the same page, to Thomas's questioning whether the Establishment Clause ought to have been seen as applicable to the states through the 14th Amendment (even though he found the 2d Amendment incorporated in the 14th Amendment).

Does a landlord have an ethical obligation to disclose that the previous tenant died in the apartment you're thinking of renting?

The NYT ethicist thinks the obligation is "seemingly obvious" or even "compulsory." He's responding to somebody who wasn't informed before signing the lease and now finds it "unsettling and slightly disturbing" to know that the previous tenant died. Of an overdose. Not a murder, just an overdose. A forgotten man slipped away through the portal to the beyond that exists within that rental unit... and everywhere else on the face of the earth.

This last week, we've been driving quite a distance across that face. Maybe an eyelid's expanse of earth-face. Much of the eyelid has been Montana, where the Montana American Legion has been carrying out its White Cross Highway Fatality Marker Program since 1953.

The unique idea of marking fatal traffic accident sites with a white cross was the brain child of Floyd Eaheart, a member of the American Legion Hellgate Post #27, Missoula, Montana; after six lives were lost in the Missoula area over the 1952 Labor Day Holiday. The safety program started out as a county and later district project for the Missoula American Legion Post. However, the idea was so good that it was soon adopted as a statewide program. The Montana Highway Commission (now Department of Transportation) approved the program in January 1953, with the blessing of the then 13th governor of Montana, J. Hugo Aronson (the Galloping Swede)....

The program is intended as a highway safety, not a memorial program.  Still, many families place wreaths or other decorations on the white crosses, which may be considered a memorial to a loved one lost in an accident.  Obstruction of the white cross with these decorations defeats the purpose of the safety program.  

You appropriate an individual's death for your message of traffic safety, with the state's approval, and you don't like when the people who loved that person pile on a message of their own. Either it's a speech forum, where viewpoint discrimination is banned or it's the state's own speech, and it's an Establishment Clause violation (unless the courts say it's not).

The white crosses serve as a public service message, reminding drivers to “Please Drive Carefully.”  They are a sobering reminder of a fatal traffic accident, a place where a human being lost his/her life....

Not all highway fatalities are marked.  Due to a federal ruling, white crosses are not allowed along interstate highways.

Here's some discussion of the case. I don't see what the interstate has to do with it. The Constitution applies off the off ramp. But the crosses are all over the place in Montana, reminding us where people have died. How unsettled the skittish NYT reader might feel, driving in Montana, knowing about all that death. Or perhaps it's soothing to see so few doorways to oblivion have opened up in the years since 1953. Half a century has gone by and yet there are long spaces on the road that have never swallowed a human being. Often you can traverse an entire eyelash on the face of the earth without seeing a white cross.

Seeing the white crosses, I wonder about the places where there has been death. What if you could — everywhere — see who (and what) has ever died on that spot. How covered with death would the earth be? I'm blogging in the breakfast room of a Holiday Inn Express in Bismarck, North Dakota. Am I sitting on a dinosaur carcass?

Senator Schumer "is known to cajole, nag, and outright pester his staff" about getting married and having babies.

The NYT seems to be celebrating the man for using his position in the workplace to harass underlings about their private lives:

Cupid’s arrow lands where it will, but many of the couples say that Mr. Schumer, a New York Democrat, has an unusual knack for guiding its journey. He keeps close track of office romances, quotes marriage-friendly Scripture (“God to man: be fruitful and multiply”), and is known to cajole, nag, and outright pester his staff (at least those he perceives as receptive to such pestering) toward connubial bliss.

Religion too! He sounds like the Steve Carrell character in "The Office" — the inappropriate boss, who doesn't know the normal boundaries.

Forget Master of the Senate. This is the Yenta of the Senate.

“What’s the holdup?” the senator asks couples who are dillydallying on an engagement. “Did you get a ring yet?” Other could-be-marrieds receive a simple instruction: “Get moving!”

The NYT thinks this is cute, but you know damned well that if a conservative politician were doing this he would be accused of making the workplace a hostile environment.

[H]is focus, like many a politician’s, never strays far from his legacy: first comes Schumer Marriage, then come Schumer Babies.

“Have kids; have a lot of kids,” Mr. Schumer, who has two daughters, is known to intone. “Start early and keep having them.”

Jeez, he's appropriating their marriages and their babies.

Sometimes, Mr. Schumer greets a former staff member, “So, is your wife pregnant again?” Other times, he does not even bother with the question. One former aide, who asked not to be named, recalled seeing the senator bump into a recently married couple, both Schumer alumni. “He just stared down at her midsection and said, ‘Well?’ ”

Staring at a woman's belly as a way to convey the desire that she get pregnant? War-on-women warriors would be calling for his head if he were a Republican.

“Our staff is a family,” Mr. Schumer said, his voice often taking a paternal tone. “I want them to be happy. I get worried that they’ll be lonely. So I encourage them. If I think it’s a good match, I try to gently — as gently as I can — nudge it.”

Picture Steve Carrell saying that directly into the camera.

“It brings him joy,” said Risa Heller, a former communications director, one of more than a dozen former aides who recounted his sayings, often while imitating his voice. “He picks good people to work for him, and when they pick each other, it’s even better.”

You want to get ahead in the Democratic Party power structure? Submit to the matchmaking... and make some babies. I'd like to know more about how this picking of "good people" is carried out. Are good looking women chosen to provide wives for the men? Do the women continue climbing in the party hierarchy or do they retreat into babymaking and husband supporting?

I'd like 10 years of data.

"The U.S. Court of Appeals for the Seventh Circuit, en banc, ruled that it violated the First Amendment’s no-religious-establishments rule..."

"... to hold high-school graduation ceremonies in a particular church building because of that particular building’s 'proselytizing environment.'"

There was no dispute that the reasons for holding the ceremonies in the building had nothing to do with evangelism and everything to do with space and comfort. But, because the building is “indisputably and emphatically Christian,” the court majority concluded that holding the ceremonies in this building both “endorsed” religion and “coerced” religious exercise....

Here's the opinion. In dissent, Judge Easterbrook says: "It is easier to justify graduation in a church than voting in a church." I agree. My voting place is in a church, and I don't think that should be allowed.

No one should feel obliged by conscience or faith to give up his influence in governance—and that’s what voting represents. A rule of neutrality between religious and secular sites permits government to use religious venues for graduation and voting alike, though I do not think it wise to use a church for either function.

So Judge Easterbrook agrees with me.

But acting inconsiderately toward persons whose sincere views disfavor conducting public business in religious venues differs from establishing a religion.

Now, Judge Posner — also dissenting — writes with confident expectation that the Supreme Court will pay attention:

The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance....

The text and history of the establishment clause provide no clue to whether a public high school (a virtually nonexistent institution in the eighteenth century) “establishes” religion when it holds its graduation ceremony in a church. The opaque phrase “respecting an establishment” casts no light on the question....

The students at Brookfield High overwhelmingly and emphatically deemed the school’s gym an inadequate venue for the graduation ceremony. Yet it was the only possible one on the school’s grounds (apart from the football field, also deemed inadequate — the students wanted to be indoors with air conditioning). Bowing to their wishes the school chose Elmbrook Church, the students’ first choice....

There is no suggestion that holding a high-school graduation at the Elmbrook Church has ever triggered a conversion.

How often are visitors to churches converted by the visit? Conversion generally precedes attendance. How many of the millions of non-Catholic visitors to St. Peter’s—Protestants, Jews, Muslims, Hindus, Buddhists, atheists, and so forth—have converted to Catholicism as a result of their visit to that awesome site? I mean no disrespect to the Elmbrook Church in pointing out that no counterpart to the treasures of St. Peter’s that include Bernini’s baldacchino and Michelangelo’s Pietà, the tombs of 91 Popes, a fragment of the True Cross, and the spear that pierced Christ’s side at the Crucifixion (of course the authenticity of the last two items has been questioned), is to be found there.

The plaintiffs argue that by holding its graduation ceremony in a church festooned with religious symbols, Broomfield High is “coercing students and parents to attend a house of worship.” “Coercing?” That is hyperbole. Attendance at graduation isn’t compulsory, graduation is not a “coerced activity,” and a student who attends graduation in Elmbrook Church no more attends a religious ceremony than the cleaning crew when it sweeps the church’s aisles. When the Supreme Court said in Lee v. Weisman, supra, 505 U.S. at 586, 595, in florid hyperbole that “attendance and participation in the [graduation ceremony] are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma,” as “it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term ‘voluntary,’ for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years,” it was whistling in the dark.

The plaintiffs say the church is “using its control over the environment of the graduation ceremonies to expose thousands of attendees per year—including numerous youths—to its religious message.” There is nothing to suggest that the church enhances the religiosity of its interior décor for the graduation. The interior is what it is. A church that rents space to a secular organization shouldn’t be required to pretend it isn’t a church.
 
The reductio ad absurdum is the plaintiffs’ complaint, as unrealistic about the modern American high schooler as the Supreme Court in Lee v. Waisman, that when the students sit down in the church pews for the graduation ceremony, church literature visible to them in the book racks on the backs of the pews in front of them tells them they’re “God’s Little Lambs,” and thoughtfully provides them with a “Scribble Card for God’s Little Lambs” and a pencil to scribble with, and thus tries to seduce them to Evangelical Protestantism. Imagine how 18-year-olds react to being called little lambs! True, the family members who attend the graduation may include children, but in no sense are they coerced by the school to attend the graduation.

The idea that mere exposure to religious imagery, with no accompanying proselytizing, is a form of religious establishment has no factual support, as well as being implausible. Religion is for good or ill a large component of human culture, including American culture. Religious words and symbols are ubiquitous....

The interior of the Elmbrook Church, perhaps the very idea of a church, offends the plaintiffs. But offense can’t be the criterion for an establishment of religion; if it were, no challenge based on the establishment clause would ever fail, for those challenges are invariably mounted by people offended by the government’s association with religion.

"It sends the wrong message to distraught farmers when the Agriculture Secretary suggests that the best response is to pray."

"For a Cabinet official to recommend prayer as a solution or call attention to his own devotions may violate the Constitution’s prohibition against establishment of religion. Most important, though, is that prayer doesn’t work. But if you want to test the power of prayer yourself, consider this. Apparently Secretary Vilsack’s been praying for rain every day; how’s that working out?"

Says the Council for Secular Humanism. They're wrong about the Establishment Clause, and I think the phrase "may violate" indicates that they know it. But they do have a point about government officials talking about prayer... or is that nothing more than the same point you could make about anybody praying? All that praying for things that don't happen generates evidence that prayer doesn't work.

I know the religion-based answers to that last point. (God answers prayers in ways other than granting the thing prayed-for, etc.) But I think it's different when a government official bandies religion about. A short, respectful reference to God or to prayer is standard rhetoric that isn't out of place in politician-speak. Did Vilsack go too far with "I get on my knees every day. And I’m saying an extra prayer now. If I had a rain prayer or a rain dance I could do, I would do it”?

It's not like he's trying to excuse himself for failing to do something he could do. I know government officials frequently act as though they could control the great forces of nature/human behavior/the economy, so I'd rather see the open acknowledgment that there's nothing to be done, which is basically what Vilsack is saying.

Now, if that means praying is nothing, maybe religionists should be offended. Also, "rain dance" might be offensive to Native Americans. Come on, everyone, let's get offended.

"Will a Mormon president treat constitutional clauses as divine injunctions?"

"If so, what grounds will we non-Mormons have for interpreting with secular arguments what is presented as God’s will? For that matter, what right will the Supreme Court have to treat the document as anything less than a divinely inspired covenant? Does the First Amendment actually separate church and state, or does that not count, since it is merely an amendment, not the original word of God? But why, then, did a mere amendment change the first inspiration that made slaves less than full persons?"

Garry Wills, he's not anti-Mormon. He just has questions. A lot of questions. Can't blame a man for asking questions, can you? I'd say you can. This is an effort to smear Romney with some really silly insinuations. Why would the fact that the President is a Mormon — even assuming Wills states the belief correctly and Romney himself holds that belief — affect what the Constitution means, what non-Mormons will be able to think about what it means, and how the Supreme Court would interpret it?

In any case, isn't the belief that the framers of the Constitution were divinely inspired fairly common? Where does it get you... other than to profound reverence and dedication? What's wrong with that? The President is supposed to be dedicated to the Constitution. The original Constitution is structured around the existing institution of slavery, but what's the point of bringing that up? Wills is asking questions, not making arguments, which let's him be very slippery. He knows that the part of the Constitution that liberals care about is all in the amendments, and perhaps he'd like to separate the good part of the Constitution — the amendments — from the bad part — the part with slavery... and all the structural safeguards that conservatives would like to see enforced.

"A Rhode Island teen is learning that it pays to deny the existence of God..."

"... Prominent atheists plan to present Jessica Ahlquist with a scholarship of at least $44,000 — and possibly more."

If you subsidize something, you'll get more of it. Come on, atheists — pass out more money!

You cannot serve God and Mammon.

Come on, Mammon: Make a better offer.

Who the hell is "Mammon" anyway? Here's where Wikipedia is so fine. You just know, even before you look, there will be a whole article on mammon, and the question that's been dogging you since the first time you read the Gospel of Matthew will finally get a solid answer:

Mammon is a term, derived from the Christian Bible, used to describe material wealth or greed, most often personified as a deity, and sometimes included in the seven princes of Hell....

The Christians began to use the name of Mammon as a pejorative, a term that was used to describe greed, avarice, and unjust worldly gain in Biblical literature. It was personified as a false god in the New Testament.... The term is often used to refer to excessive materialism or greed as a negative influence....

Mammon is somewhat similar to the Greek god Plutus, and the Roman Dis Pater, in his description, and it is likely that he was at some point based on them; especially since Plutus appears in The Divine Comedy as a wolf-like demon of wealth, wolves being associated with greed in the Middle Ages. Thomas Aquinas metaphorically described the sin of Avarice as "Mammon being carried up from Hell by a wolf, coming to inflame the human heart with Greed".

Satan was the big topic yesterday. I've moved on to Mammon.

"For justices in the center, I don't think they want to be on the wrong side of history" on same-sex marriage.

Says Stanford lawprof Pamela Karlan.

"Unless we see a massive about-face (in public attitudes), 25 years from now people will look back at this and wonder why (equal marriage rights) took so long.

Chapman University lawprof John Eastman says:

"I hope [Justice Kennedy] won't be swayed by shifting public opinion, assuming there is a shift".... If the law is supposed to change along with public attitudes, he said, "the political process is adequate to the task. We don't need the courts."

Speaking of law that is/isn't changing with shifting public attitudes, I can't help changing the subject to the Constitution's Free Exercise Clause and the current flap over contraception and insurance coverage. An awful lot of conservatives — with Rush Limbaugh leading the pack — are endeavoring to shape public opinion about the meaning of these rights. Either they are genuinely ignorant about the case law interpreting the Free Exercise Clause or they are doing the very thing they normally rail against: trying to make the Constitution "evolve" so it says what they'd like it to say. Here's Rush:

The right to religious liberty in this context is unequivocal in our country and in the Constitution. It's right there in the Bill of Rights. Since when does a president have the power to threaten to issue a rule gutting religious liberty?

It's absurd to declare there's no right to gay marriage in the Constitution and turn around and say the President's rule about contraception and insurance coverage violates some obvious "unequivocal" right in the Constitution. Have one theory of the Constitution and stick to it, clowns.

The First Amendment -- the Bill of Rights of the Constitution -- explicitly says that government shall have nothing to do with religion. You hear, do you not, the left constantly caterwauling, whining and moaning about "separation of church and state"? 

Now, he's reached the Establishment Clause, and suddenly he's an arch-separation-of-church-and-state guy.  Nice to trash "the left" for inconsistency, but what's more hypocritical than being inconsistent in order to trash the other guy for inconsistency?

I've been a law professor for a long time, so it's not as though this sort of thing shocks me. But I would like to help you see how much dishonesty/ignorance is on display here. What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?

More Rush:

Whenever a religious Republican or conservative seeks political office [the left worries] about "the imposition of religious moral values on people," and say, "This is intolerable! This is intolerable. It's not permitted! It's a violation of the Constitution." So the left hates the Constitution when it's an impediment to what they want to do. When it supports what they want to do, they're the biggest constitutionalists in the world. 

And the right? They do the same damned thing.

"The Supreme Court ruled for the first time Wednesday that federal discrimination laws do not protect employees of religious organizations who perform 'ministerial' duties."

"The court ruled unanimously that the First Amendment’s protection of the free exercise of religion dictates the organizations 'be free to choose those who will guide it on its way.'"

The case involved a Michigan schoolteacher who said Hosanna-Tabor Evangelical Lutheran Church violated the Americans with Disability Act in 2005 when it fired her after she tried to return to work after being diagnosed with narcolepsy.

"I'm about as secular as a person could reasonably be..."

"... but not secular enough to grumble about other people's enjoyment of what they regard as the birthday celebration for their spiritual savior," says Geoffrey K. Pullum, at Language Log.

From my kitchen here in Edinburgh right now, I can hear the bell of Broughton St. Mary's Church calling the flock in for the Christmas morning service, and it doesn't make me bristle. And I don't mind the huge Norwegian Christmas tree that is always erected on The Mound behind the Scottish National Gallery (a gift from Hordaland in Norway in memory of close ties during the Second World War) being called a Christmas tree. The nativity scenes put up here and there annoy me to the same extent as the menoras in some windows, which is to say, absolutely not at all.

The Christmas Eve carol service from King's College Cambridge, broadcast on BBC Radio 4, is worth hearing by anyone who appreciates high-quality choral music, and if some public funds are used to get the outside broadcast trucks to Cambridge and the mikes set up, I say good, spend it. The BBC's short sermon each morning, "Thought For The Day", studiously circulates through Protestantism, Catholicism, Hinduism, Buddhism, Sikhism, and Islam, so determined are they to be eclectic in their spiritual uplift. I disappear into the shower rather than hear the platitudes, but I'm not inclined to campaign for removing them from the airwaves. Considering that the UK actually is a theocracy (the reigning monarch is both head of state and head of the uniquely established church that the state recognizes), it's all pretty relaxed and inclusive and not worth a serious person's protest time.

The UK actually is a theocracy... but a serious, completely secular person shouldn't mind it at all.

If a public school does a seasonal, multicultural concert with songs like "Feliz Navidad" and "Hava Nagila"...

... can it remove the song "Raghupati Ragava Raja Ram" — which refers to the Hindu gods Sita and Rama and contains the line "God or Allah is your name" — after various parents complain?

If you think it's unconstitutional, is it a violation of free speech, freedom of religion, or the Establishment Clause?

"A skeleton, dressed as Santa Claus, nailed to a cross" — on display at a Leesburg, Virginia courthouse.

It's controversial, and a lady ripped it down, but "Skele-Claus" was accepted by the Loudoun County Board of Supervisors. The creator of the anti-Christmas display, Jeff Heflin said: "It depicts how society's materialistic obsessions and addictions are killing the season's peace, love, joy and kindness."

The leader of the Northern Virginia Atheists, Rick Wingrove, says tearing down the display was illegal, and people should keep an open mind.

"Offense is in the eye of the beholder. We're offended by the religious displays on government  property. We think it's constitutionally improper," Wingrove said.

See, this is why you don't want to turn government property into a public forum for speech in the form of unattended displays. If that's what you've got, free speech law proscribes viewpoint discrimination. (There are ways to have Christmas decorations without running into this problem, but they risk running into Establishment Clause problems.)

I don't like these "atheists" who are really religion-haters. If you really only think there is no God, why are you so hostile toward people who think otherwise? Find something else to do. Why obsess about religion? And why can't you enjoy festive displays of things that you don't actually believe in? Virtually everyone who puts up a Santa Claus display doesn't believe in Santa Claus. It's just a lightweight seasonal amusement. What's to hate? I wouldn't dignify virulent religion-haters with the neutral appellation "atheist." It's not fair to all the amiable, well-balanced atheists out there.

"We wish the people of Wisconsin would take care of their own business and leave us, and [Big Mountain Jesus], totally alone."

A 50-year-old statue in Montana, put up by the local Knights of Columbus to honor soldiers who had seen statues like this while serving in Italy in World War II, is attacked as unconstitutional by the Freedom From Religion Foundation of Madison, Wisconsin.

The monument is also a local landmark:

“People say, ‘Meet at Jesus at 11.’ Skiers take pictures with him, wrap him up in clothing and put Mardi Gras beads on him.”

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation says: “It’s terribly important that the religious right not be allowed to manipulate this situation.” (But her organization picked the fight!)

Here's the  “Save Big Mountain Jesus Statue” Facebook page, which links to this article that pre-dates the current controversy:

“I was out on the mountain, kind of exploring,” [Dan Graves] recalled, taking a break from work last week to recount his first encounter with the statue. “Of course, through the fog and the haze, I saw Christ, with his outstretched hands.”

“It was a little surreal,” Graves added.

Anyone who skis or hikes or bikes along Big Mountain’s slopes has likely had a similarly jarring encounter: coming around a bend near the top of Chair 2 to find the life-like concrete rendering of Jesus Christ, gazing out over Whitefish Lake and the Flathead Valley beyond, from a perch above where the trail splits into Ed’s Run, Hibernation and Hellroaring.

So the placement in the landscape heightens the spirituality of the encounter with the religious symbol, but I think removing the statue is not necessary to comply with the Establishment Clause. I go back to what Justice Breyer wrote in one of the 10 Commandments cases that the Supreme Court decided in 2005. Breyer — it's important to note — was the only member of the Court in the majority in both cases.

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

Big Mountain Jesus is a 50-year-old part of the landscape, so it's probably a good idea to take Justice Breyer's advice seriously and ski clear of divisiveness and a brooding and pervasive devotion to the secular.