Congress Heard Prayer before Backing "Establishment Clause"

On May 5, the U. S. Supreme Court decided Town of Greece v. Galloway.
In the case, Galloway sued Greece, claiming that the town, by opening its monthly meeting with a prayer, created an unconstitutional "establishment of religion."

The town did not prescribe or approve the prayers to be said. A town employee simply called ministers listed in a directory, until one volunteered (without pay) to say the opening prayer.

Justice Anthony Kennedy, writing for the majority, held that the town's practice was permissible and did not constitute an unconstitutional First Amendment violation. The court relied on its 1983 precedent in Marsh v. Chambers.

"In Marsh ... the Court found no First Amendment violation in the Nebraska Legislature's practice of opening its sessions with a prayer delivered by a chaplain paid from state funds."
The court then explained its holding in Marsh.

"Marsh is sometimes described as 'carving out an exception' to the Court's Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to any of the formal 'tests' that have traditionally structured' this inquiry. ... The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. ...

"When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. ... Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent ... 'In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.'"

In short, the legislative opening prayer was sustained because the very Congress that had just passed the First Amendment during that same session began the practice of opening its sessions with an opening prayer said by a paid chaplain.

Obviously, if they felt that the practice amounted to an improper "establishment of religion," they wouldn't have done it.

"That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society."

But while the Greece court sustained the legislative prayer practice, it did add a caveat:

"Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted "by reference to historical practices and understandings."

On the other hand, the court instructed that the "content of the prayer (opening legislative sessions) is not of concern to judges," provided "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief."

The court further explained, and rejected the plaintiff's argument that public prayers must be "non-sectarian."

"Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior (Engel v. Vitale). It would be but a few steps removed from that prohibition for legislatures to require chaplain to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.... 'The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.'

"The government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer-giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian."

The court then gave guidance as to what has been historically typical legislative prayer.

"It is thus possible to discern in the prayers offered to Congress a commonality of theme and tone. While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws."

Rejecting the notion that some citizens might find such prayer offensive, or compulsive, the court said, "Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith."

Finally, the court indicated it would look to see that the entire body of the prayers offered -- rather than a single prayer -- was consistent with how legislative prayers have been done traditionally.

"Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer."

Space limitations prevent me from doing more than summarizing the opinion. But I think the reasoning in this case could be of great importance in other areas of constitutional law.My thoughts on the importance of the case will follow.

Posted Online:  June 21, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Illinois Democrats: "Raise Taxes or the Sky Will Fall"

My father had a rule born of the Great Depression: "Pay cash; don't buy on time; and don't pay interest."

Dad didn't buy "things" (our home excepted) unless he had cash to pay for them.

Illinois' Democrat politicians have a "better idea". They buy whatever strikes their passing fancy, even though the state is flat broke. Then to pay, they raise taxes, or borrow and pay interest.

They, for example, want to build President Obama's library. Presidential libraries are ordinarily built with private funds. But their "better idea" is to pay for it with taxpayer dollars they don't have.

This "better idea," like other "better ideas," comes along at a time when Illinois can't pay its bills on time and has a multi-billion dollar pension problem.

Illinois ended 2013 with $7.6 billion in unpaid bills. (Not withstanding the fact that in January 2011 Democrats -- without the support of a single Republican lawmaker -- raised the state income tax on individuals from 3 percent to 5 percent, and the corporate income taxes from 7.3 percent to 9.5 percent.)

Couple that with the fact that "the state's four main state pension funds have an unfunded liability of roughly $100 billion.

Here's a sample of Democrat logic. U.S. Sen. Dick Durbin, D-Ill., describes taxpayer dollars he wants spent on the Obama presidential library as "seed money."

"It's going to have a long-term positive economic impact. ... This library will pay back in terms of visitors to our state, more business, more jobs and people paying taxes. ... Whether $100 million is the right dollar amount, I don't know ...."

And he's not alone. Illinois House Speaker Mike Madigan, D-Chicago, and Chicago Democrat Mayor Rahm Emanuel have been leading the charge to spend taxpayer dollars for the library. Indeed, an Illinois House Committee led by Democrats wanted to appropriate $100 millions for it.

There is of course one flaw in the argument: once built, presidential libraries generally lose money. Therefore, once built, they are normally sloughed off to the U. S. National Archives -- which continues to operate them at a loss.

By comparison, "friends" of presidents Bush and Clinton raised over $200 million in private dollars to fund their libraries. George Washington's library at Mount Vernon operates on private donations.

In addition to this "better idea," Democrats have some others. Spend $520,0000 to fly 91 prairie chickens into Illinois at a cost of $1,166 per prairie chicken, and spend billions for "high speed rail" (e.g., buy 35 locomotives at $5 million)!

On May 31, Illinois Senate Democrats approved a $35.7 billion budget, in which expenses exceed revenues by $4.4 billion or 12.3 percent. To make it balance, Democrats want to extend the 5 percent Illinois personal income tax, and the 9.5 percent corporate income taxes -- not withstanding their promises that the tax increases would be "temporary." The alternative would be -- horror of horrors! -- to actually cut spending by $4.4 billion or by 12.3 percent.

So you can bet that in the lame-duck session -- right after the 2014 General Election -- Democrats will welsh on their 2011 promise to let the personal income tax revert from 5 percent to 3.75 percent, and the corporate income tax revert from 9.5 percent to 7.75 percent in 2015. Recall, that it was in the 2011 lame-duck session that the Democrats raised the income taxes to their present levels. (Why during the lame-duck session? Because that's when "retiring" politicians can pass anything, fully knowing they will not have to answer for their votes while they are collecting their pensions.)

We are already -- predictably -- being told that a $4.4 billion or 12.3 percent spending cut will be catastrophic! Programs will be devastated. Historic sites will be closed. State agencies will be left in limbo.

The sky will fall!

There are two methods of budgeting. Governments generally use baseline budgeting, or a variation thereof. Real people -- like you and I -- use zero based budgeting.

Baseline budgeting uses current spending levels as the baseline for establishing future funding requirements and assumes future budgets will equal the current budget plus upward adjustments for inflation and population growth.

Zero based budgeting requires that all spending must be rejustified each year or it will be eliminated from the budget -- regardless of previous spending levels!

Illinois families don't have the option of using baseline budgeting to run their homes. They can't spend 12.3 percent more then they have. If they expect a 2015 income of $31,300 per year, spending $35,700 is a recipe for bankruptcy -- unless they have savings they can dip into.

Illinois has reached the point were it can't be Santa Claus to everybody. The only rational approach is for the state to thoroughly analyze every one of its programs.Then, set aside the necessary money for the most important program. Next, do the same for the second. Then, do the same for the third, and so on.

When the $31.3 billion runs out, quit spending. No sane man believes that there isn't 12.3 percent waste, duplication and/or cronyism in Illinois' $35.7 billion budget.


Posted Online:  June 12, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Don't Trust Humans to Redistrict Illinois

               "Gerrymander, Joy of Joys, Safe house seats for all our boys!
                        "Gerrymander, we're awfully fond of you, voo, voo, de, doh!"
                                  - To tune of "Rubber Duckie," 
                                          Rock Island County ARC Gridiron Show (1991)

The present system of redistricting Illinois congressional districts and Illinois state legislative districts is cynical political humbug.

What passes for fair-minded redistricting in our state is a counterfeit, inconsistent with the 14th Amendment to the U.S. Constitution which provides "No State shall ... deny to any person within its jurisdiction the equal protection of the laws."

In 1964, the U. S. Supreme Court in Reynolds v. Sims, held that state legislative districts had to be roughly equal in population. The case rose when voters from Jefferson County, Ala., challenged the redistricting of their state legislature. At the time, Alabama state senators were elected from senatorial districts grossly unequal in population.

One district had 14 times the population of another!

Eight justices voted to strike down the Alabama senate district scheme. Chief Justice Earl Warren wrote that it violated the U. S. Constitutional requirement of "one person, one vote."

He further wrote, "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests."

Reynolds v. Sims was not a gerrymandering case. It did not involve drawing congressional districts roughly equal in population but manipulating their boundaries so as to include or exclude Republicans or Democrats, in order to give one party an a electoral advantage.The most extreme example of that would be to create a meandering district that included only persons registered in the Democratic primary, and excluding all persons registered in the the Republican primary -- that is, a district with only Democrats.

The language in the Reynolds v. Sims majority opinion, however, clearly states that "gerrymandering" can be unconstitutional.

"The right to vote can neither be denied outright ... nor destroyed by alteration of ballots ... nor diluted by ballot box stuffing. Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted. ... Racially based gerrymandering, and the conducting of white primaries, both of which result in denying to some citizens their right to vote, have been held to be constitutionally impermissible. And history has seen a continuing expansion of the scope of the right of suffrage in this country. The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."

When districts are intentionally gerrymandered to create districts in which Democrats or Republicans almost are guaranteed victory, the members of the other party have their votes debased. But although the problem may be obvious, the solution may not be.

In the early years when I was on the bench, once a year all Illinois judges were required to attend the Illinois Judicial Conference Educational Seminar. At a luncheon during one such session, the issue of appointing judges (rather than electing them) was discussed by the speaker, an Illinois Supreme Court justice.

The justice expressed skepticism with the argument that "allowing the governor to appoint judges would keep judicial appointments from being political." Instead, he suggested a better way: "Have the appointments made by the Illinois Supreme Court." When the laughter subsided, he finished his remarks, having persuaded nobody.

Recently, the Yes for Independent Maps Coalition has been working to collect about a half a million signatures to get a proposed constitutional amendment on the November ballot that would take redistricting of Illinois legislative districts (not Congressional districts) out of the hands of the legislature.

They correctly believe that Illinois history demonstrates that legislative redistricting equals gerrymandering.

As outlined by the coalition, if approved, any Illinois citizen could apply to join the legislative redistricting commission. A nonpartisan applicant review panel, appointed by the auditor general, would eliminate applicants with conflicts of interest, such as lobbyists or public officials. (Excluding anybody, of course, raises a new set of constitutional questions.)

A lottery then would be used to select commissioners to create a group of two Democrats, two Republicans and three unaffiliated with either party, all proportionally representing Illinois' five judicial districts. The four top legislative leaders in Illinois would each appoint one commissioner from the remaining pool. Commission meetings and records would be open to the public.

The problem I have with this solution to fix Illinois legislative redistricting is that to the extent that there is a human element involved, a remedy is hardly guaranteed. People in politics maneuver, and even finagle to gain partisan advantage.

I would opt for the simplest of all solutions. Create districts as nearly rectangular as possible (taking account of the fact Illinois is not square, but rather is bounded by wandering rivers, etc.) Require these districts be as equal in population as possible. Take account of no other factors. Leave race, creed, color, ethnicity, municipal subdivision boundaries, etc. out of the determination.

Have the district lines drawn by computers, with no directions in the program other than

1. Make them as rectangular as possible, and

2. As nearly equal in population as possible.

If a district is drawn to favor whites, it disfavors everybody else. If it is drawn to favor Latinos, it disfavors Irish guys.

At a minimum, my plan would certainly bar any congressional or legislative district that look like our present 17th Congressional District -- the epitome of a Gerrymander, or perhaps a crocodile, with its mouth open, perched on its keister!

Posted Online:  June 5, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea