Sandefur fisks Beckwith on the Cobb County Case

Timothy Sandefur has an excellent post at the Panda's Thumb fisking Frank Beckwith's article in Legal Times concerning the Cobb County decision. The crux of Beckwith's argument is that the ruling "presents a Catch-22 that makes it nearly impossible for religious citizens to remedy public policies that they believe are uniquely hostile to their beliefs." There are many problems with this argument and Sandefur nails several of them. I'd just like to expand on one point, which is the almost ubiquitous nature of such complaints and therefore desires for such a "remedy".

Beckwith's argument is that if a religious group objects to the teaching of something in public schools, they should have the right to lobby their representatives to "remedy" that, and that by not allowing them to do so, it burdens them in a way that a secular group would not be burdened. But this is a very odd argument. Of course religious groups can lobby the government as much as they want, but it doesn't mean that the remedies that they seek from the government are constitutional. Let me give you an example.

Let's say a group of conservative Jews who believed that holding the sabbath holy meant you cannot work or do anything on Saturdays. Suppose they see other people working on the sabbath and it offends them. There is no law against working on the sabbath, of course, and that lack of a law could well be seen by them as "uniquely hostile" to their deeply held religious belief. They do, of course, have the right to urge their representatives to outlaw working on the sabbath, but would such a law be constitutional? Of course it wouldn't. It would fail the Lemon test just as the Cobb County disclaimer sticker did. And I doubt Beckwith would then be arguing that this Jewish group was being unfairly burdened by not being allowed to pass a law that prevents others from offending their religious sensibilities, and that's because he would surely recognize that the right to lobby for a given law doesn't make that law constitutional.

One can easily imagine a wide range of similar situations in which the schools teach things that might be viewed as "uniquely hostile" to a given religious group. Must we then put disclaimers into earth science textbooks that mention that the earth is 4.55 billion years old? After all, young earth creationists view this as uniquely hostile to their religious beliefs. The same is true of big bang cosmology, so must we also have a disclaimer in the physics textbooks that mention it? The Christian Scientists could just as easily view any teaching of the germ theory of disease as uniquely hostile to their deeply held religious belief that disease is purely spiritual in nature. For that matter, the Christian Identity movement would view any teaching about the holocaust or about the essential equality of all races to be uniquely hostile to their religious beliefs and demand a disclaimer there as well. The possibilities are, quite literally, limitless. And under Beckwith's legal reasoning, they would all have just as strong an argument on the very same grounds.

One of the things overlooked in all of this is that the disclaimer in question was totally superfluous. It was entirely useless to put a disclaimer on a textbook saying evolution is a theory when that textbook taught evolution as a theory. Indeed, an entire chapter in the book was titled The Theory of Evolution. So why on earth would it be necessary to put that disclaimer on it? The sole reason was to assuage the concerns of a specific religious group that doesn't like evolution. But if that's the standard, we're going to have to put stickers on damn near every textbook because there is virtually nothing taught that isn't objected to by some religious group.

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Have you read Braunfeld v. Brown, 366 U.S. 599 (1961)? What do you think it says about your statement re. Sabbath laws?
No, I'd never heard of that case. It's not quite the same as my scenario, in fact it's really the opposite. Rather than a Jewish group seeking to impose their sabbath rules on non-Jews, they were seeking instead to not have Christian-influenced sabbath laws, recognizing Sunday instead of Saturday, imposed upon them. Still, it's a rather stunning decision, and flat out wrong in my view. It commits the same error that you and I have both written against, it presumes that the burden of proof was on those Jewish people to show that they should be allowed to open their business on Sundays. In reality, the burden of proof should be on the government to show that there is a compelling interest in preventing them from doing so.
I found another case from the same year, McGowan v. Maryland, that is truly astonishing. Look at the syllabus from this decision:

Appellants, employees of a large department store on a highway in Anne Arundel County, Md., were convicted and fined in a Maryland State Court for selling on Sunday a loose-leaf binder, a can of floor wax, a stapler, staples and a toy, in violation of Md. Ann. Code, Art. 27, 521, which generally prohibits the sale on Sunday of all merchandise except the retail sale of tobacco products, confectioneries, milk, bread, fruit, gasoline, oils, greases, drugs, medicines, newspapers and periodicals. Recent amendments now except from the prohibition the retail sale in Anne Arundel County of all foodstuffs, automobile and boating accessories, flowers, toilet goods, hospital supplies and souvenirs, and exempt entirely any retail establishment in that County which employs not more than one person other than the owner.

How irrational can a law be? Selling a toy on Sunday will get you arrested, but selling tobacco or boating accessories won't. It seems to me that this is exactly the kind of irrational power grab by government that the 9th amendment should protect against. Nowhere in the Constitution is there any legitimate governmental authority exercised in passing such a law.

Hmm, from the brief description of the case that I found it seems that Braunfeld v. Brown was argued on First Amendment grounds. I think that was a mistake. The 14+9+10 strategy would have been more appropriate.

Copy of a comment that I posted at Panda's Thumb

Beckwith need not be alarmed. Regardless of whether "evilution" is supposed to be in the curriculum in public schools, apparently it is often not being taught, according to an article in this morning's NYTImes:

>Evolution Takes a Back Seat in U.S. Classes


>Teaching guides and textbooks may meet the approval of biologists, but superintendents or principals discourage teachers from discussing it. Or teachers themselves avoid the topic, fearing protests from fundamentalists in their communities.

More at

These "culture war" issues will likely lead to the end of public education in the US. People on your side of the culture war (and I'm on that side, too) should be prepared for it. In many areas, fundamentalists are getting their way. Not by getting creationism/ID taught along with evolution, and not by stickers, but by mau-mauing the public schools not to teach "evilution." And there isn't much that people on your side of the culture war can do about that.

So, Beckwith is clearly wrong when he says that decisions like the one in Cobb County leave fundamentalists out in the cold. And he misses the point that those decisions leave them (the fundamentalists) with no way to influence public policy regarding public education. They certainly have--influenced public policy, that is.

How irrational can a law be? Selling a toy on Sunday will get you arrested, but selling tobacco or boating accessories won't.

Well, when I was in high school, during the 80s, the blue laws in Mass were still being enforced, so that a cashier at one of the grocery stores in the chain I worked for was arrested for selling a canned good before 12 noon, because the law only allowed for the selling certain items, apparently the kind of thing people cannot live without, before 12 and after 6 on Sundays.

And yes, tobacco was a "necessity" according to the law, but canned vegetables were not. This arrest was part of a sting operation for grocery stores that the local authorities undertook. If you really want your head to explode - the law apparently allowed convenience stores to sell anything, but grocery stores were limited in what they could sell.

I believe the charges were thrown out on First Amendment grounds, but I am not positive.

1. In Texas, auto dealers must choose one day of the week to close. Most choose Sunday.

2. Beckwith's analysis is a cul-de-sac, if not a total dead end. If his guys get to complain that they find evolution violates their faith, I get to complain that creationism is a total distortion of Christianity. Since there can be no judging of such claims, under Beckwith's analysis, creationism is forbidden, too.

Heck, surely there is some religion that finds Pythagoras' religion offensive, and his theorem offensive as well.

3. How to get around the "not teaching evolution" issue? Teach the facts. In Bible Thump, Texas, local cotton farmers cooperate in the national campaign to eradicate the cotton boll weevil. It's nearing success -- built on the science that a careful program of pesticides can be applied that will avoid pushing the pest to mutate to a pesticide-resistant form. Local grapefruit farmers, growing a species of fruit that did not exist 100 years ago, now grow red ones -- a sport mutation from the 1940s that increased sweetness and improved visual appeal. And in the local oilfields, geology of age looks for ancient swamps, which are now pockets of oil.

Especially in Bible Thump, people don't pee in the soup pot. They won't oppose evolution when it butters their bread and pays the mortgage.

By Ed Darrell (not verified) on 02 Feb 2005 #permalink

What's interesting about McGowan to me is that it typifies many courts' approach to the problem of Sunday closing laws. These laws are obviously passed for religious reasons, and, I think, obviously violate the Establishment Clause (assuming for now that the 14th Amendment incorporates that clause). But the Court upheld Sunday closing laws in McGowan on the polite fiction that they're just labor laws--for the "improvement of the health, safety, recreation and general well-being of our citizens"--rather than religious laws.

That's absurd, I think, but it's an old way of handling these cases. In Ex parte Newman, 9 Cal. 502 (1858), Chief Justice David Terry struck down Sunday closing laws as violating the (state) Establishment Clause. This is the only time you will ever find me agreeing with David Terry (who was otherwise a pig) and disagreeing with Stephen Field (who's my hero). Terry not only rejected the argument that Sunday closing laws are legitimate on religious grounds, he also rejected the argument that they're just a labor regulation:

it may be well considered, that the amount of rest which would be required by one-half of society may be widely disproportionate to that required by the other. It is a matter of which each individual must be permitted to judge for himself, according to his own instincts and necessities. As well might the Legislature fix the days and hours for work, and enforce their observance by an unbending rule which shall be visited alike upon the weak and strong. Whenever such attempts are made, the law-making power leaves its legitimate sphere, and makes an incursion into the realms of physiology, and its enactments, like the sumptuary laws of the ancients, which prescribe the mode and texture of people's clothing, or similar laws which might prescribe and limit our food and drink, must be regarded as an invasion, without reason or necessity, of the natural rights of the citizen, which are guaranteed by the fundamental law.

Id. at 508-09. (I feel compelled to note that this case came almost 50 years before Lochner.)

Justice Field dissented, arguing that "The law treats of business matters, not religious duties. In fixing a day of rest, it establishes only a rule of civil conduct....It does not even allude to the subject of religious profession or worship, in any of its provisions.... [T]he Legislature has given the sanction of law to a rule of conduct, which the entire civilized world recognizes as essential to the physical and moral wellbeing of society." Id. at 519-20 (emphasis original).

Three years later, after Terry had resigned from the bench and fled south, and Field became Chief Justice of the state, the Court overruled Newman, in Ex parte Andrews, 18 Cal. 678 (1861), stating only that "We do not deem it necessary to pursue the discussion. The opinion of Mr. Justice Field in Ex parte Newman (9 Cal. 518) discusses the main questions involved, and more fully expresses our views." Id. at 685.

History presents us with amazing ironies, sometimes. Field would go down in history as more or less inventing Lochner-style laissez-faire jurisprudence. Terry would become a populist, one of the creators of California's regulatory state, and would end up being shot to death in a Fresno restaurant by the bodyguard of--Stephen J. Field.