May 26, 2009

Sotomayor to Supremes

Posted in Law tagged , , , at 9:38 am by Andrew

…so says CNN. I’m disappointed in Obama’s surrender to identity politics, and also because I preferred Diane Wood for this spot.

Addendum: It’s not that Sotomayor isn’t smart or isn’t qualified, or any of the silly things I’m hearing on CNN and MSNBC right now. Obviously she is. It’s that, in the rarefied air of Supreme Court picks, Sotomayor doesn’t have the intellectual heft of a Scalia or Roberts.

Remember that simply replacing Souter’s vote with Sotomayor’s preserves a 5-4 status quo in favor of the current activist-right court; Obama’s objective here was not merely to find someone who would vote like Souter, but someone who could presumably persuade Anthony Kennedy on more close calls. From my perspective, Sotomayor isn’t that kind of pick.

May 21, 2009

Substitutionary Atonement and the Analogy to the Courtroom

Posted in Answering Apologists, Atheism, Law tagged , , , , , , , , at 11:05 am by Andrew

The Christian doctrine of substitutionary atonement is often explained by an analogy to the courtroom: sinners stand before a judge (God) and are properly adjudicated guilty and deserve punishment, but that fine can in turn be paid by someone else (Christ). I imagine most of us have heard this analogy. (If you haven’t, or if you want to delve into it more deeply, you might enjoy this article by J.I. Packer, “The Logic of Penal Substitution.”) In any event, I think I’m representing this view fairly, and I’m sure my commenters will correct me if not.

If so, then I have to say that from the perspective of a lawyer, the analogy makes absolutely no sense. The law can be thought of as roughly dividing into two spheres, civil and criminal. Civil law focuses on recompensing the victim; if I steal $100 from you, you sue me for the $100 in order to be rendered whole. That kind of debt can be paid by someone else, but only because civil contract law is wholly unconcerned with the rightness or wrongness of the actor. To put it another way: our civil law setup is such that we neither encourage nor discourage people from breaking contracts; we just require that if you do break a contract, you (or someone else) has to render the contractee whole. Even if you break a contract maliciously, civil law doesn’t really care and doesn’t impose any kind of penalty on you to stop you from breaking contracts again in the future. It isn’t “justice” in the colloquial sense of the word (and in the sense that Christians are invoking the concept when they draw the penal analogy).

Criminal law, on the other hand, has an entirely different focus. It is concerned with the goodness or rightness of the actor, and it is wholly unconcerned with recompensing the victim; that’s usually what we think of with the word “justice.” Thus, criminal convictions impose a public penalty in order to punish the wrongdoer and deter him and others from committing the same offense against society in the future.

It would make no sense in the criminal scheme to allow someone else to serve out a convicted criminal’s sentence (or pay his fine, or whatever). The point isn’t to get the money; it’s to impose a hardship on someone who’s a danger to society and deter others from following in his shoes. So that’s why the penal substitution analogy doesn’t work; if a penalty can be paid by someone else and you can go scot free, it isn’t “justice” — at least, not in the way we humans understand it.

This is so readily apparent to anyone (even nonlawyers) who think about it that it surprises me that the analogy and argument continue to be so popular (e.g. Todd Friel and the Way of the Master crowd).

May 20, 2009

Answering Email: Prayer in Schools

Posted in Atheism, Law tagged , , , , at 10:52 am by Andrew

In light of my previous discussion on the Establishment Clause, a commenter emailed me to ask about the status of student-led prayers in public schools. As you (may) know, the common refrain that the Supreme Court “banned prayer in public school” is incorrect; students may pray voluntarily and may otherwise engage in religious activities on school properties on an equal footing with secular activities as a part of their First Amendment rights to the free exercise of religion. (And — although you wouldn’t know it from folks like Jay Sekulow — the ACLU is actually the biggest defender of Christians and other religious people in these sorts of free exercise cases.)

But as you also probably know, the Free Exercise clause has its limits, and those limits come into play when a governmental policy seems to prefer religious behavior to secular behavior. Thus, what the Supreme Court did in Engel v. Vitale, 370 U.S. 421 (1962) — surprisingly, the Wikipedia article on this is pretty good — was to prohibit state-led and other mandatory prayers in public school.

So that led one commenter to ask me:

Andrew – What about prayers that are led by students in front of the other students at, say, a football game or a graduation?

I thought this was such a great question that it deserved to be front-paged. Here’s my take:
Read the rest of this entry »

May 12, 2009

Richard Posner: “Religious Criteria in the Selection of Public Officials” (Partially) to Blame for Death of Conservatism

Posted in Atheism, Law tagged , , , , at 2:22 pm by Andrew

Seventh Circuit Judge Richard Posner has a new blog post up entitled Is the Conservative Movement Losing Steam?, in which he laments the current state of conservativism in the U.S. (as being “at its lowest ebb since 1964”). The cause?

The major blows to conservatism, culminating in the election and programs of Obama, have been fourfold: the failure of military force to achieve U.S. foreign policy objectives; the inanity of trying to substitute will for intellect, as in the denial of global warming, the use of religious criteria in the selection of public officials, the neglect of management and expertise in government; a continued preoccupation with abortion; and fiscal incontinence in the form of massive budget deficits, the Medicare drug plan, excessive foreign borrowing, and asset-price inflation.

Lawyers know Posner as the guru of the law-and-economics movement, an unbelievably smart guy who always seems to be on the short list of potential Republican Supreme Court nominees. But before reading this, I would not have associated Posner with any sort of sympathy towards secularism; I’ll have to go back and read his Establishment Clause decisions.

Shorter Posner: “Monica Goodling? You’ve gotta be kidding me….”

May 11, 2009

Disparaging Religion in Public Schools (or: Dr. James Corbett Speaks Out)

Posted in Atheism, Creationism, Law tagged , at 1:11 pm by Andrew

Most of you are probably aware that the U.S. District Court for the Central District of California (which is a federal trial court) recently ruled that comments made by Capistrano Valley High School history teacher Dr. James Corbett to his students violated the establishment clause by constituting undue hostility to religion in public school.

I hadn’t previously commented on the case previously because Ed Brayton beat me to the punch. Essentially, I think it is as troubling (on Constitutional and practical grounds) if a teacher routinely disparages religious beliefs in front of his students as if he routinely proselytizes them. As Ed put it, “It is one thing to tell a student that they are teaching something because it is the position best supported by the evidence; it is quite another to tell them that their religion makes them incapable of seeing the truth and that their religion is a fraud believed in by fools.”

But now that Dr. Corbett has spoken out about the verdict, I think the case is more borderline than the public record shows. As it turns out, all of the comments at issue in the lawsuit made by Dr. Corbett were explicitly made as part of a “Socratic Dialogue” moment at the start of class that was specifically identified by letter sent to all of Dr. Corbett’s students. That letter said:

“Most days we will spend a few minutes (sometimes more) at the beginning of class discussing current events from either The Orange County Register or the L.A. Times. I may also use material from a variety of news Web sites. Discussion will be quite provocative, and focus on the ‘lessons’ of history. My goal is to have you go home with something that will provoke discussion with your parents. Students may offer any perspective without concern that anything they say will impact either my attitude toward them or their grades. I encourage a full range of views.”

I included my home phone number and e-mail address in that letter and encouraged parents to contact me if they had any concerns.

In my mind, that letter sets out the legitimate secular purpose required by the first prong of the Lemon test — provoking discussion on controversial issues. Had that been accorded proper weight by the District Court, it would have shifted the burden to the plaintiffs to demonstrate that the asserted purpose was a mere “sham”; i.e., that Corbett used the fig leaf of “Socratic Dialogue” as cover to diatribe about religion.

In other words: the plaintiffs could still have prevailed in their lawsuit under this application of the Lemon test; they would have just had to introduce evidence that Corbett was haranguing his students and calling them idiots for believing in religion as opposed to expressing his opinion on a controversial (and non-graded) topic. That, it seems to me, strikes the proper balance between freedom of speech and the free exercise clause in public schools.

May 6, 2009

The Intersection Between Politics and Religion

Posted in Creationism, Law tagged , , , at 11:41 am by Andrew

You’ve all probably seen this tape of Chris Matthews doing his usual Hardball shtick interview of Indiana Rep. Mike Pence:

The money quote, in my opinion, is this: “This is why people don’t trust Republicans. … I think you believe in evolution, but you’re afraid to say so because your conservative constituency might find that offensive.”

Nate Silver over at has called this the “Republican Death Spiral,” and he describes it this way:

Thus the Republicans […] are in something of a death spiral. The more conservative […] their message becomes, the more they alienate non-base Republicans. But the more they alienate non-base Republicans, the fewer of them are left to worry about appeasing. Thus, their message becomes continually more appealing to the base — but more conservative, partisan, and strident to the rest of us. And the process loops back upon itself.

For me, I replace the word “conservative” — which is not a dirty word in my book — with “catering to the religious right,” and I see a party that is incapable of appealing to libertarian and other would-be right-leaning atheists. That’s why — if you click on a random theist blog — you’ll probably find yourself also reading about the conspiracy between ACORN and black liberation preachers to destroy democracy or how Barack Obama is a secret Muslim who wasn’t born in the U.S. or other parroted, right-wing talking points that strike me as, frankly, crazy.

(Another case in point: Christian commenter Phil calls Cass Sunstein a ‘fascist.’ I can’t begin to process how one would think a left-leaning, somewhat iconoclastic law professor is in the moral vicinity of Adolf Hitler.)

It wasn’t always this way. It doesn’t have to be this way. But for now, we appear to have a Republican Party that is interested in becoming nothing more than the Right-Wing Evangelical Christian Party. With atheism, agnosticism and freethought on the rise, that is indeed a recipe for a “death spiral.”

May 5, 2009

Cass Sunstein and “Net Neutrality”

Posted in Law tagged , , , , , at 1:59 pm by Andrew

In my previous posts on why I think Cass Sunstein will be Barack Obama’s nominee to the Supreme Court to replace outgoing Justice David Souter, two separate commenters mentioned net neutrality as a reason to oppose a Sunstein nomination.

Three things:

1) Sunstein isn’t my personal top choice; that would be Sunstein protege Diane Wood, who has the strongest record of unambiguously supporting strict separation of church and state. Sunstein was just the first name that popped into my head when the news broke, and I was — and am! — surprised that he doesn’t seem to be getting any sort of attention from the Jeffrey Toobins and Chuck Todds of the world. So far I have not seen a single mainstream media mention of Sunstein as a potential nominee, and that strikes me as seriously underrating his chances.

2) On the issues: Sunstein explicitly mentioned net neutrality as a reason he was voting for Obama back in the Democratic primaries in his 2008 endorsement:

He [Obama] proposes a $150 billion research budget for climate change. He wants to hold an unprecedented national auction for the right to emit greenhouse gases. He has offered an ambitious plan for promoting technological innovation, calling for a national broadband policy, embracing network neutrality, and proposing a reform of the patent system.

[emphasis added]

That seems pretty clear to me.

3) In the alternative, if you think Sunstein is secretly opposed to net neutrality as a matter of public policy, you should be rooting for his appointment to the Supreme Court and away from the Office of Information and Regulatory Affairs, where any such policies will actually be enacted over the next few years.

May 4, 2009

Supreme Court Trivia (no atheism content)

Posted in Law tagged , , at 9:40 am by Andrew

Via Ed Brayton’s “Dispatches From the Culture Wars:

The Supreme Court handed down a ruling with the most unusual lineup I can ever remember seeing. It was a 5-4 case and here were the sides:

In the majority: Justices Stevens, Ginsburg, Souter, Scalia and Thomas.

In dissent: Justices Breyer, Kennedy, Alito and Roberts.

Can you guess what the case was about?

Click through to Ed’s site to find out!

Personally, I think the lineup would have been stranger had Scalia and Thomas been on opposite sides. And I think this highlights my prior argument that strict constructionism doesn’t “naturally” fracture down ideological lines.

May 1, 2009

More on Why I Think Cass Sunstein Will Be Obama’s Nominee

Posted in Law tagged , , , , at 10:33 am by Andrew

Here’s my case:
Read the rest of this entry »

My Quick Guess for Obama’s SCOTUS Nomination…

Posted in Law tagged , , , , at 12:23 am by Andrew

With the news breaking that Supreme Court Justice David Souter will step down from the Court, my impulse pick for Obama’s first Supreme Court nominee is Cass Sunstein.

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