August 2010

  • August 19, 2010
    While conservative pundits, such as Sarah Palin and Newt Gingrich, are loudly fighting the planned Islamic center and mosque in New York City, legal scholars and First Amendment experts are noting the hypocrisy of the attacks on the planned religious site, the harm the attacks have on democracy, and the fact that the law appears to be squarely on the side of permitting the project to go forward.

    As noted here yesterday, the First Amendment scholar Charles C. Haynes has said that the rising "anti-mosque rhetoric," is reminiscent of other periods in the country when disfavored religious groups were the victims of intolerance - Haynes notes, for instance, anti-Catholicism that festered throughout the nation during the 19th Century.

    In a recent column for The Washington Post website's "On Faith," Haynes writes:

    Since 9/11, demonization of Islam has become a cottage industry in America, aided and abetted by some evangelical leaders and a growing number of politicians. Much like the anti-Catholic hysteria of the 19th century, the current outbreak of Islamophobia is based on the paranoid fantasy that Islam in America is a threat to democracy and freedom.

    Haynes, the First Amendment Center's senior scholar and director of the Newseum's Religious Freedom Education Project, adds that what is truly at stake is the nation's commitment to religious freedom, for all:

    It's time for people of conscience to look beyond what's happening in Manhattan and pay closer attention to the growing anti-mosque movement around the nation. Although extreme voices now dominate the debate in many local communities, I am hopeful that most Americans will have the courage to stand up for their Muslim neighbors and fellow citizens by speaking out for religious freedom.

    Constitutional law expert Marci A. Hamilton, in an article for FindLaw, maintains that "crude politics has polluted the American values that must be vindicated."

    Hamilton, a law professor at Benjamin N. Cardozo School of Law, writes:

    Sadly, the American Center for Law and Justice (ACLJ) and the Anti-Defamation League (ADL) have each made an exception to their usual full-throated defense of religious interests, and publicly come out against the mosque proposal. The ACLJ joined the conservative commentators, like Sarah Palin, who have tried to transform this land- use application into a way of energizing the base over terrorism. Yet, the only apparent connection between the application and 9/11 is their co-residence in the wide universe of Islamicism. It's like saying that Jim Jones's Peoples Temple Christian Church Full Gospel, which resulted in the largest mass suicide in history, was Christian. The two groups have thus turned this into an instance of identity politics, rather than any kind of sincere honoring of America's war dead.

  • August 19, 2010
    Guest Post

    Bert Brandenburg is executive director of the Justice at Stake Campaign, a nonpartisan campaign with 50 state and national partners that works to keep courts fair, impartial and free from special-interest influence.
    The last 10 years have brought a revolution in the election of state Supreme Court judges. Special-interest cash has become king. Most Americans fear that justice is for sale.

    This week, three reform groups released the first comprehensive national overview of spending on high court elections in the 2000-2009 decade, and on the political powerhouses seeking to tilt the scales of justice.

    The report, "The New Politics of Judicial Elections, 2000-2009: Decade of Change"- released by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics - describes a decade-long attack on the very notion of impartial justice. And the campaign trail attacks are paired with a litigation crusade to destroy meaningful election regulation.

    Some of the report's findings:

    • Spending on state Supreme Court elections more than doubled in 2000-2009; candidates raised $206.9 million, compared with just $83.3 million in the 1990s.
    • Outside groups - funded by business groups, plaintiffs' lawyers and unions - poured in at least $39 million more in TV ads not approved by court candidates, ads that often viciously attacked and distorted the candidates' records. Much of this involved secret money from unknown bankrollers.
    • Twenty of the 22 states that hold at least some competitive elections for Supreme Court had their costliest election ever.

    There is nothing new about states electing judges. About 85 percent of all state judges face some form of election.

    What is new is the tidal wave of money. High court judges must routinely raise big money from parties who appear before them in court. Outside groups are spending millions more on ads to pressure judges and trash their reputations.

    All this money has caused profound unease. Polls repeatedly have shown that three Americans in four believe campaign cash affects courtroom decisions. And Justice Sandra Day O'Connor says public trust is injured when elected judges appear beholden to a small group of self-interested bankrollers.

    "This crisis of confidence in the impartiality of the judiciary is real and growing," she wrote in the report's foreword. "Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold."

    Why did special interests discover court elections? Two words: tort wars.

  • August 18, 2010
    The jurors in the federal prosecution of former Illinois governor Rod Blagojevich were only able to render a conviction on one count - lying to the FBI. The jury could not reach a unanimous verdict on the slew of other more serious charges, including the one that he attempted to sell the Senate seat vacated when Barack Obama was elected president. In an op-ed for The New York Times, best-selling author and attorney Scott Turow says the jury's action can be traced to the Supreme Court's recent rulings on regulations of corporate campaign financing.

    Turow writes:

    I suspect the jury's indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

    Turow notes that in a 5-4 decision last summer, the high court said a West Virginia Supreme Court judge should have recused himself in a case involving Don Blankenship, head of the Massey Coal company, because of Blankenship's enormous amounts of campaign contributions to the judge. But Turow continues, the high court "pointedly refused to require the same of other judges who received less grandiose campaign assistance from lawyers and litigants with cases before them."

    Then the Supreme Court, earlier this year, issued its headline-grabbing decision in Citizens United v. FEC, which concluded that corporations can spend freely on campaigns.

    Turow notes:

    Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

    The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.


    In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court's elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying.

    Turow suggests a constitutional amendment may be needed to reverse "the notion that unrestricted political spending deserves protection as free speech. Without that, who could fault a juror for looking around at contemporary political life and feeling that Rod Blagojevich had been unfairly singled out?"


  • August 18, 2010

    by Jeremy Leaming

    While some politicians and pundits are trashing certain constitutional amendments, or provisions of them, others are celebrating the Constitution.

    Specifically some are commemorating an amendment ratified 90 years ago that advanced equality. The Constitution's 19th Amendment was ratified on August 18, 1920, following a close vote in the Tennessee legislature. The amendment providing women the right to vote reads, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of Sex."

    Alice Germond, in a piece for Politico, notes that the amendment's passage was a longtime coming, "after nearly 70 years and several generations of work...." Germond continues that in the decades since the amendment's passage, "women have made great strides," noting the high percentage of women voters and the rising number of women in Congress and state legislatures. But she also notes that great strides are needed to secure equality and that the Obama administration has been engaged in the process.

    Germond writes:

    Although women continue to earn less than men - just 78 cents on the dollar, on average - President Obama took immediate action to close the gap. The very first bill the president signed after taking office was the Lilly Ledbetter Fair Pay Act, which protects women against pay discrimination and helps to ensure women receive equal pay for equal work.

    In addition, President Obama has championed flexible work policies like paid sick leave, because he believes women should not have to choose between keeping their jobs and caring for loved ones. Through a White House Forum on Workplace Flexibility and through the creation of a White House Council on Women and Girls, the president is working to better identify and address the challenges faced by women in the workplace.

    While commemorating the 19th amendment, the occassion should also include discussion of the need to make progress toward full equality Germond concludes.

  • August 18, 2010
    The rising rhetoric and increasing rallies aimed at disparaging Islam represent "a new threat to the religious freedom of Muslims in America," writes the First Amendment Center's Charles C. Haynes.

    Haynes, the director of the Newseum's Religious Freedom Education Project, notes that "anti-Muslim rhetoric has taken an ominous turn in recent months as a growing number of political and community leaders - some with tea-party affiliations - have begun warning of a ‘Muslim takeover' of America."

    Haynes cites numerous anti-Muslim rallies from Tennessee to California, including the loud opposition to the construction of an Islamic center in New York City.

    Haynes writes:

    In recent months, tea-party groups in New York have also helped organize opposition to mosques in Manhattan (the controversial plan to build an Islamic center two blocks from ground zero), Brooklyn and Staten Island. Tea-party meetings in Tennessee, Texas and California feature speakers warning of the ‘Islamization of America.'

    In an ironic twist reminiscent of the anti-Catholic rallies of the 19th century (warning against ‘Romanism' seeking ‘despotic control' of America), anti-mosque protests in Murfreesboro, Temecula and elsewhere feature groups of citizens invoking their First Amendment rights to freedom of speech and assembly to call for denying another group of citizens First Amendment protection.


    If the anti-mosque protests are any indication, Islamophobia - the fear and loathing of Islam as a ‘violent political ideology' - is a growing threat to religious freedom in the United States. And in many communities, some tea-party activists are actively encouraging and supporting this dangerous trend.