The Theocracy Moves Ahead

By Mark Trodden | October 1, 2006 9:38 am

I’ve been absent for a week or so, and will be for a few days more. However, before I hop on a plane, I thought I’d quickly comment on what a remarkable week it has been for the constitution.

I hesitate slightly before continuing to write negative things about the government, because you see, I am now classified as someone who, despite paying large amounts in taxes, despite being married to an American, and hence having large numbers of extended family in the U.S., despite working for an American employer, and despite loving my “Mom”, enjoying baseball, and being partial to a nice slice of apple pie, can nevertheless be whisked away without a moment’s notice, and detained indefinitely, having no right to challenge my detention. I can, in essence, be disappeared by my own government. Yes, the passing of S. 3930 – “A bill to authorize trial by military commission for violations of the law of war, and for other purposes” – by a 65-34 Senate vote will be judged harshly by history, should there be any of us around to do the judging.

Hot on the heels of this disgusting, terrifying, embarrassing and deeply saddening piece of legislation, our leaders have now passed another absolute corker. While our troops are in Iraq, fighting, we are supposed to believe, against religious extremists who hate our democracy and freedoms, here at home plans are moving ahead to edge this much-touted democracy closer and closer to a theocracy, in which the religious (well, let’s be honest, Christians really, and only certain kinds of them at that) are a privileged class.

The most recent move in this direction is The Public Expression of Religion Act – H.R. 2679. This says, and I paraphrase, that while the constitution is the basis of American democracy, and applies to all citizens, you should get a break if you violate it to force your religion on someone. That is to say, breaking the law in the name of religion is less of a crime than breaking it if you are, say, hungry, or without shelter.

As Erwin Chemerinsky says in The Washington Post, this bill

… provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion.

Chemerinsky goes on to point out that

The attorneys’ fees statute has worked well for almost 30 years. Lawyers receive attorneys’ fees under the law only if their claim is meritorious and they win in court. Unsuccessful lawyers get nothing under the law. This creates a strong disincentive to frivolous suits and encourages lawyers to bring only clearly meritorious ones.

and concludes correctly that

Such a bill could have only one motive: to protect unconstitutional government actions advancing religion. The religious right, which has been trying for years to use government to advance their religious views, wants to reduce the likelihood that their efforts will be declared unconstitutional. Since they cannot change the law of the Establishment Clause by statute, they have turned their attention to trying to prevent its enforcement by eliminating the possibility for recovery of attorneys’ fees.

Well, on that sad note, and with my bile rising, I’m going to pack my bags. I’m off to Australia in the morning, for three weeks. I will be a Sir Thomas Lyle Fellow at the University of Melbourne, and plan to work hard and have a great time. I should be able to resume regular posting while there, so I’ll try to provide some discussion of physics (and food and wine) down under.

Three weeks is a long time in U.S. politics. I’ll be keeping my fingers crossed that, when I return, the passport control discussion doesn’t go like:

Agent: “Where have you been on this trip Sir?”
Me: “Australia”
Agent: “Was it business or pleasure Sir?”
Me: “Some of both”
Agent: “How long were you out of the country Sir?”
Me: “Twenty one days”
Agent: “One last question Sir; have you accepted Jesus Christ as your Lord and savior?”

  • graviton383

    Agent:“By the way, what’s the square root of 98??”

  • Guillermo Alcántara

    Doesn’t all this news cause you fear? It sounds really ugly. Have you thought about changing residence to Canada or Europe? Maybe I sound paranoic. If I lived in the US, I would want to escape before the next bill passes. Will it be, “non-Christians have reservations for the benefit of all”?

  • Babe in the Universe

    HI Mark: Welcome to Australia! Why don’t you stick around Melbourne for the Texas Symposium in December? You will find that Australians are good-natured and optimistic about the future. Get to know John Howard while you’re here.

  • Aaron

    Ugggh! What I don’t get about the PERA is how you could possibly justify it. The statement here that the ACLU doesn’t have to pay attorneys’ fees, and therefore shouldn’t be entitled to collect attorneys’ fees, seems reasonable enough, if true, but the solution to that problem is not to ban all collection of attorneys’ fees! The screed here seems to be saying that the “exorbiant attorney fees” governments have to pay if they lose establishment clause cases are encouraging them to give up their fair day in court… but if the governments are in the right, why are they so worried about losing? In fact, of the three lawsuit targets that the article lists — “Boy Scouts of America, the Ten Commandments, and now veterans’ memorials” — the latter two seem to be blatant violations of the establishment clause, and even the first one may not be completely silly.

    The law itself seems straightforward enough, but I find the introduction a tad disturbing:

    To amend the Revised Statutes of the United States to eliminate the chilling effect on the constitutionally protected expression of religion by State and local officials that results from the threat that potential litigants may seek damages and attorney’s fees.

    Maybe someome with more (i.e., any) legal experience can tell me — what sort of “religious expression by State and local officials” is protected? Government officials obviously have the right to personal religious expression, just like everyone else, but it sounds like this law is intended to discourage lawsuits against things like mandatory prayers in public schools — stuff that’s constitutionally prohibited. Indeed, the law goes on to say,

    The remedies with respect to a claim under this section where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion shall be limited to injunctive relief.

    What sort of “constitutionally protected expression of religion by State and local officials” violates the establishment clause, or appears to do so?

    p.s. I’m glad that sort of immigrations discussion is still fictional — in the US, anyway. At least you’d be able to answer the last question correctly. :-/

    p.p.s. Which brings up an interesting question for all you commenters: if an immigrations official asked you such a question, would you make a fuss even if you could truthfully give the right answer? I think I probably would, because I know there are a lot of people who would back me up… but without that support, I don’t know if I’d be brave enough.

  • Sean

    Whatever the “Sir Thomas Lyle Fellow” is, it sounds suspciously un-American. They’ll probably detain you just for that.

  • Moshe

    I was once asked at border crossing if I had any foreign collaborators, very strange indeed given my truly terrible accent…

    Also, what would be your answer to that final question? I am on record multiple times as accepting Christ as my savior, but that’s just me.

  • Kea

    Also, what would be your answer to that final question?


  • Spatulated

    I take zefrank as my personal savior

  • Pingback: Critter Proof | Cosmic Variance()

  • neoleo

    Dear Mark,

    You are most welcome in Australia as ‘Babe in the Universe’ says. However you may find the land of Oz uncomfortably familiar. Legislation and the enforcement of it has taken some weird turns over the past few years and much of your concerns are shared by many of the locals.

    A great country to visit! Even greater to leave again in one piece, as Charles Darwin astutely concluded about 170 years ago…

  • Aaron

    At least you’d be able to answer the last question correctly.

    Ooops… or not. I had you completely mistaken for someone else. X-P Sorry bout that!

  • Fermi Walker Public Transport

    Great resturants on Lygon Street and be sure to vist St. Kilda region

  • Ann

    The statute abolishing awards of attorney fees in establishment cases is news to me, but it seems reasonable. There are two parts of the First Amendment that refer to religion, the anti-establishment clause and the non-interference clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The anti-establishment clause originally referred only to not creating an established state religion such as existed in England and most other European countries (and still does in many).

    When the Bill of Rights was adopted, it only applied to the federal government, and the federal government had very little involvement in citizens’ daily lives. Education, land use regulation, economic regulation, almost all criminal law, all domestic relations law, all these were either not governmental functions at all or were exclusively state or local government functions.

    With the Fourteenth Amendment’s expansion to the states of Bill of Rights limitations, the growing role of government in daily life during the last century, and the expansive interpretation of the establishment clause in the last few decades, it seems to me there is a high risk that the two religion clauses of the First Amendment will sometimes be in conflict – that people who work for the government or participate in governmental programs or government-funded programs will find their free exercise of religion restricted by the anti-establishment clause. Are a couple of public school teachers who are monitoring a school cafeteria free to say grace out loud over their lunch? What about if students nearby can hear them? If they do it, they may be ‘establishing’ a religion and if they are prohibited from doing it, their free exercise of religion may be suppressed. Both are unconstitutional.

    A large school district can absorb the cost of occasional litigation of establishment clause cases, but many school districts can’t, and are going to find their ability to meet the educational needs of their districts compromised if their superintendent, principals and teachers, none of whom are probably trained constitutional scholars, guess wrong on what a Court might ultimately hold to be an ‘establishment’ of religion. Considering that even constitutional scholars can differ on the issue, it isn’t always easy to know what is an establishment and what isn’t.

    I don’t think that abolishing the right of attorney fee recovery is likely to bring about a ‘theocracy.’ The right has only existed for a relatively small part of our country’s history and we weren’t a theocracy before it was created.

    By the way, attorney fee clauses are often applied unevenly. In some states (or maybe all), a government agency or individual suing to collect child support has an absolute right to recover attorney fees if successful, but the alleged debtor is not entitled to recover attorney fees even if it turns out nothing was owed?

    A far more serious threat to religious freedom now is in media self-censorship, college speech codes and the like, and in tolerance of threats or violence in furtherance of an ‘insult-free’ climate for selected religions. Consider this quote from an article in the New York Daily News on October 1, 2006, entitled “Bobblehead Muhammed?” about a dashboard figuring depicting Islam’s prophet Mohammed in headgear that included a bomb with a lit fuse.

    No depiction of the prophet, even if it is positive, should be made ever – and certainly not one as ridiculous as the bobblehead Muhammed,” said Zvi Ben-Dor Benite, an assistant professor at New York University. “I don’t think it’s about freedom of speech. This is the freedom to insult, which he shouldn’t be doing.

    Just try to find a major American newspaper with a photo of that figurine, or of the Danish cartoons of last year. They will be few and far between, not out of respect for religion -they aren’t afraid to run cartoons, photos or stories insulting to Christians – but out of fear. It doesn’t always take government action to diminish religious freedom.

    As an atheist, I’m frankly a lot more worried about being threatened with decapitation if I insult Islam than I am with obsessively rooting out every last vestige of Christianity in our public schools. I’d rather be the only atheist in a Catholic school in the 1960s (as I was in the ninth grade) than a college student today trying to have a reasonable classroom discussion about the role of religion in Middle Eastern conflicts.

  • Joseph Hertzlinger

    Should there be a law awarding attorney’s fees in lawsuits involving unconstitutional breaches of property rights?

  • the amazing kim

    Ah, Melbourne. Try Koko Black in Lygon Street (5 minutes walk from uni), or the food co-op on the third floor of Union House. While you’re in Lygon, why not stop at the Original Lolly Shop, or Brunetti’s. Outside the uni, Borscht, Vodka and Tears in Windsor is always good, or Polly bar in Brunswick street, or the Butterfly Club in South Melbourne. All good places to visit. Anyway, enjoy your stay.

  • Mark

    Thanks Fermi and kim – I’m staying essentially on Lygon St. and am already trying great places.

  • heraclitus

    It is the duty of the citizen to point out to the Government when it falls into error.
    Too few of them know that hiring an attorney is an admission of incompetence. (see corpus juris secundum for more.)
    You may be able to find square roots and intervals and such, but that does not translate into competence as a Person in court.

    If scientists wanted to be immediately useful, they would in unison publicly withdraw their labor from Government work until specific humane and generous provisions for questioning detention are written into law.
    As humane and generous are unscientific terms, I suggest they refer to the ethics of plain gospel Christianity for a standard.


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About Mark Trodden

Mark Trodden holds the Fay R. and Eugene L. Langberg Endowed Chair in Physics and is co-director of the Center for Particle Cosmology at the University of Pennsylvania. He is a theoretical physicist working on particle physics and gravity— in particular on the roles they play in the evolution and structure of the universe. When asked for a short phrase to describe his research area, he says he is a particle cosmologist.


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