Completing a Discussion of the Supreme Court's Term

Susan B. Anthony List is an organization opposed both to abortion and to the Obamacare Act.
During the congressional campaigns on 2010, the SBA List bought a billboard ad in the 1st Congressional District of Ohio (which includes most of the city of Cincinnati, and which was represented at the time in the US Congress by Steven Driehaus). The ad would have consisted of a photo of Driehaus and the words, "Shame on Steven Driehaus! Driehaus voted FOR taxpayer-funded abortion!"


I say it "would have" consisted of this, because the billboard was never actually erected. Driehaus' campaign, with the help of the Ohio Elections Commission, was able to persuade the billboard company to refrain from running it on the ground that it stated a plain falsehood. 


The question of the accuracy of that ad seemed a fairly straightforward one. Driehaus had voted for Obamacare. SBA doesn't seem to have had any other vote that he might have cast in mind, other than that one. So: Obamacare either provides for taxpayer funded abortions or it doesn't: right?


Well, even here one has to worry about Plato's top, which is both moving and stationary. But a more important point is: it is dangerous to censor speech for no reason other than that it is factually inaccurate.


Driehaus lost the campaign, and sued for defamation. His lawyers put their point this way: "The First Amendment is not and never has been an invitation to concoct falsehoods aimed at depriving a person of his livelihood."


That last clause rather brings me up short. "Of his livelihood"? Considering that the "livelihood" in question is a seat in Congress, this sounds like a demand that a pro-incumbent bias be written into the constitution. After all, the challenger must necessary have some other "livelihood," or must have had some other livelihood before the campaign started in earnest. Only the incumbent can be deprived of his "livelihood" by the outcome of a particular election. So the implication of the language is that incumbents have special rights by virtue of having such a livelihood. Right?


Well ... wrong. I have to congratulate SCOTUS on the outcome of this one.


Clarence Thomas wrote for a unanimous court. [A cynic might think it unanimous because the liberals supported free speech and the conservatives supported anti-Obama speech.]


Establishments of Religion




The final case in our three-day review of this term is a no-establishment decision, Town of Greece v.Galloway.


Greece, New York, included a prayer by a member of the clergy as part of the opening ritual for town board meetings, after roll call and the recitation of the Pledge of Allegiance.


The Second Circuit had held that this was an establishment of religion, and thus unconstitutional, because some aspects of the prayer program, viewed in their entirety, could be taken by a reasonable person to convey the message that the town was endorsing Christianity. SCOTUS reversed, upholding the prayer program.


I think "establishment clause" law is a complete mess. But I believe I have recently attained some insight into the nature and, if you will, the necessity of that mess, and I will generously share this with you now.


The relations of Church and State (where "Church" is understood to mean any religion believed-in by large numbers of people, and/or small numbers of well-connected people, in a given area, and "state" is understood in ordinary political-science fashion) are always based on a sort of trade. The state grants the church various sorts of protections, tax exemptions, etc., and in turn the church grants the state legitimacy.


It is very difficult for any governing elite to keep themselves in power for long unless a large portion of their population believe they are somehow entitled to do so. This was true in the Middle Ages, when Emperors worried about Popes, and it is true now. The governing elite needs some legitimating body or bodies of belief, and religious beliefs are among them. If people believe it is in some sense ungodly or impious to rebel against a government -- great for the government.

The clergymen go to town hall meetings to say their prayers aloud because in some measure and at some level they understand the deal. They are giving legitimacy, and in return for doings  so their churches get various sorts of favor.


The particulars of the transaction change, but the underlying transaction is the same century after century, and I congratulation no one upon participation in this game. Its not only conceptually messy, it's all too easy.