Month: May 2014

Note: I’m giving over today’s blog to distinguished anti-death penalty attorney, Marshall Dayan.  Here’s what Marshall has to say about the rule of law in contemporary America:

Americans are rightfully proud of our historical leadership when it comes to support of the rule of law: this idea that the law prevails and that our independent judicial system will apply the law to all in a fair and consistent manner.

But a number of events over the past few weeks make me wonder if the rule of law is losing some of its vitality in the United States.

Supreme Court Justice Antonin Scalia recently told law students at the University of Tennessee that they should think about revolting if taxes get too high.  He did not recommend that those opposed to high taxes organize politically and elect representatives who would reduce high taxes. He suggested that they consider a revolt.

In Nevada, a rancher, Cliven Bundy, has refused to pay grazing fees for grazing his cattle on federal land for the past twenty years.  16,000 other western cattle ranchers graze their cattle on federal lands, and they pay grazing fees for doing so.  Bundy has outspokenly rejected the authority of the federal government and the Bureau of Land Management (BLM) to charge him grazing fees, asserting that the land belonged to the State of Nevada.  The federal court rejected this argument and ordered him to pay the fees.  The court also found him to be trespassing on federal law in the absence of payment.  Bundy became a libertarian cause célèbre by defying the court’s orders requiring him to pay the grazing fees.  (His image became tarnished when he revealed himself to be a blatant racist, ironically chastising impoverished African-Americans for availing themselves of federal government economic programs while he abused government resources for his own economic advantage.)  Rather than enforce the court’s orders, BLM backed down, at least temporarily, in the face of armed resisters who have gathered in Bunkerville, Nevada to defend Bundy’s continued illegal grazing on federal lands.

In both cases, federal officials—Justice Scalia and BLM—have weakened the concept of the rule of law.

Another example of abandoning the rule of law came when the Supreme Court of Oklahoma recently issued a stay of execution to protect its jurisdictional right to decide whether an Oklahoma statute barring the revelation of the manufacturer of drugs for lethal injection violated the state constitution. After the court ruled, Oklahoma Governor Mary Fallin defied the court’s stay order.  She issued an executive order scheduling two executions for April 29, 2014.  In issuing her executive order, Governor Fallin wrongfully argued that the Oklahoma Supreme Court had acted beyond its constitutional authority and therefore she would not follow its order.  As an aside, Oklahoma badly botched the first of two attempted executions. The condemned prisoner, Clayton Lockett, died of a heart attack forty three minutes after the lethal injection failed.  Governor Fallin then delayed the execution of the other prisoner, Charles Warner.

Our second President John Adams supposedly coined the phrase, “a government of laws, and not of men.” Adams believed that while all people are fallible, we strive to create rules to be applied fairly and consistently.  This idea comes directly from the Hebrew Bible.  Leviticus 19:15 commands, “You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your neighbor fairly.”

There will always be disputes about the boundaries of government power. An independent judiciary is necessary to settle these disputes.  Without it, we run the risk of devolving into chaos.  In United States v. United Mine Workers, Justice Felix Frankfurter wrote that “[t]here can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”

Political differences are healthy, and are to be wrestled with in a democratic republic.  But courts must remain independent, and must be honored and respected by people of good will on all sides of all issues, or we risk losing our democratic republic to a tyranny of raw power. The recent statements and decisions by the Justice Scalia, the BLM and Governor Fallin undercut this basic principle of American rule of law.

I’m still flabbergasted at the naiveté—or perhaps lack of experience in the world—displayed by Supreme Court Justice Anthony Kennedy in his majority opinion upholding the right of upstate New York government officials to say Christian prayers before town meetings.

Kennedy writes that the case comes down to whether people are offended by the prayers. His widely quoted words are 1,000% wrong: “Adults often encounter speech they find disagreeable…Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

Maybe he should have asked Jews, Muslims or atheists what they feel.  I’m quite certain that many, if not most, will tell you that they feel oppressed and assaulted by prayers that invoke Christ or a Christian god at a public or government meeting. Many also feel angry and betrayed by those allowing and enabling prayers for one religion in what is supposed to be a secular and diverse society.

I personally have encountered maybe 20 situations in my life in which clergy or lay people have offered public prayers for one religion—always a form of Christianity—at a public event.  And every single time, I have complained, usually joined by others.  Why? A combination of a deep feeling of oppression and a disappointment that the ideals of a secular society are being trampled upon.

My earliest example was when the coach of my high school football team in Miami, Florida would ask a member of the clergy to give a prayer before every game. The clergy were mostly Christian, with an occasional rabbi; it was long before the days of Islamic or Buddhist awareness. The prayers were almost always quite ecumenical, with some clergymen not even mentioning a deity. But one time, a preacher invoked Christ several times. The three Jewish members of the team (the other two of whom made All City; I was a scrub) hit the roof. We felt so angry and betrayed by our coach, an otherwise wonderful man, Frank Downey, who had actually played on the same high school football team as my father years before. Coach Downey made sure it never happened again.

When you are different from the majority or from what is considered the social norm, it always feels a little bit like you don’t really belong, whether you a different color, a different nationality or a different religion. The majority culture impinges on everything—think of the hype and the displays of Christmas season, of the Christian holidays that have become national holidays like St. Valentine’s Day or All Hallow’s Eve or of the many times politicians talk about their Christian faith. Imagine being a Moslem and trying to explain to your children why you don’t exchange presents the morning of December 25.

Luckily, our constitution and the first amendment guarantee religious freedom and a secular society. I personally believe that a correct reading of the Constitution would prohibit every type of prayer before government meetings, let alone prayer to a specific deity.

I suggest that Justice Kennedy try to walk a mile in someone else’s shoes for a few hours.  He might change his mind about what he considers to be coercive or oppressive.

Someday we will get a Supreme Court which is dedicated to interpreting the Constitution and not to completing the Reagan right-wing agenda. Maybe then, this awful Supreme Court decision will be reversed.