Topic: Law and Civil Liberties

SCOTUS Rebuffs Maine School Voucher Case

This morning, the U.S. Supreme Court declined to hear a case seeking to overturn the exclusion of religious schools from Maine’s school voucher (a.k.a., “tuitioning”) program.

Maine’s tuitioning program was created in 1873, and until 1980 it allowed families whose towns did not operate their own public high schools to choose any public or private school, using funds allocated for their education by the local taxing authority.

In 1980, then-Attoney General Joseph Brennan (D), ruled that the inclusion of religious schools violated the First Amendment of the federal Constitution, and religious schools were subsequently expelled from the program. That prohibition has persisted to this day, even in the wake of the 2002 U.S. Supreme Court ruling, Zelman v. Simmons-Harris, that found vouchers for religious schools to be constitutional.

The case was filed by 8 families whose children are not eligible for tuition assistance solely because their children attend religious schools. They were represented by the Institute for Justice which would have argued that the exclusion of religious schools was itself an unconstitutional act of discrimination against religion by the state.

There is certainly something to be said for this argument. Under the federal constitution, as interpreted by the Supreme Court, governments must strive to remain neutral with respect to religion, and clearly parents who chose religious schooling in this case are being denied an opportunity afforded to all other parents. That is not neutrality.

The proscription against religious schools is not only legally dubious, but socially divisive, as well. Parents who wish to send their children to religious schools are taxed to pay for services they cannot themselves use – a recipe for social tension. There is, however, a school choice system capable of ensuring that all families have an unfettered choice of schools for their children without anyone being forced to pay for schooling to which they object: the education tax credit.

By offering personal use tax credits (essentially targeted tax cuts) to parents who pay for their own children’s education, as well as tax credits for donations to private scholarship organizations (that in turn subsidize education for low income families) a system of private funding could be created that would ensure universal school choice without compelling anyone to fund schooling to which they objected.

Such a system would achieve the goals of public education far more ably than our current system of state-run schooling, while avoiding most of the legal problems that beset government-funded voucher programs.

Why would anyone oppose such a system, except perhaps because they wish to make it artificially difficult for families to obtain religious schooling, or because they wish to protect the lucrative monopoly for the public school employee unions?

The Results of Defending Freedom of Religion and Referring to “This Man” in Turkey?

Dr. Atilla YaylaA respected political scientist, Dr. Atilla Yayla of the Gazi University of Ankara, Turkey, has been dismissed from his teaching position and pilloried in the press in Turkey for daring publicly to make critical remarks about the legacy of Mustafa Kemal Atatürk, whose version of “secularism” has meant state control of and suppression of religion.

Kemalist secularism is not well understood by Americans and Europeans. As Dr. Yayla put it some years ago (about 10, I think) at a seminar on Islam and civil society I organized for him at the Cato Institute, “People say that you have separation of church and state in America and we have separation of mosque-and-church and state in Turkey. In America, that means freedom of religion. In Turkey, it means freedom from religion. There is a great difference between the two.” Private property, contract, and limited government, he argued, should create the framework for people to decide on their own, through voluntary cooperation, whether and how to build a mosque, a church, a synagogue, or anything else. Such decisions should not be made by state officials.

Atilla was calm during the hot discussion that followed and offered a voice of reason and true liberalism, as passionate secularists and Islamists around the seminar table argued against each other, the former for suppressing and controlling religion by force and the latter for imposing it by force. One secularist even showed a calculation of how many square meters a Muslim needs to pray, multiplied it by the Muslim population of Turkey, calculated the number of square meters of Mosque space in Turkey, and concluded that Turkey had a 50 percent surplus capacity of Mosque space, and therefore that no more should be allowed to be built. Dr. Yayla suggested that that decision should be left to the religious devotion of the faithful, whether Christian, Jewish, Muslim, or otherwise, and calmly appealed for peace by promoting freedom of religion: religion should be neither suppressed nor supported by the state.

Americans can be grateful that they enjoy the First Amendment to the Constitution of the United States: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That is not the same as “secularism,” as it is understood in the Middle East. That’s why when I’m in the Middle East I promote freedom of religion, rather than secularism, for the simple reason that secularism in that context doesn’t mean the same as the term “secular state” does elsewhere. That is one element of the Kemalist legacy that Dr. Yayla dared to criticize.

Advocates of freedom the world over should support Dr. Atilla Yayla, a principled voice for freedom of speech, for toleration, and for the civilized values of limited government, protection of property, and freedom of contract, association, and trade.

Those who wish to express their support for Dr. Yayla should contact Ms. Ozlem Caglar Yilmaz, executive director of the Association for Liberal Thinking in Ankara, of which Dr. Yayla is the president. The email is ozlemcaglar [at] liberal [dot] org [dot] tr and the fax is +90 312 230 80 03.

Janet Reno’s Late-Blooming Concern for Justice

Noted civil libertarian Janet Reno has signed an amicus curiae brief objecting to indefinite detention of alleged enemy combatants.

Maybe Reno would have a more positive attitude if the Bush administration sentenced the detainees to live under Castro’s tyranny, sent them to jail for decades on bogus charges, or simply launched a military assault on the Guantanamo prison and killed everyone inside.

If Thanksgiving Travel Woes Get You Down …

… you might want to mark your calendar for December 13th.

The Cato Institute is having a book forum on Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats, and Why We Believe Them (Free Press, 2006). In the book, Ohio State University national security expert John Mueller puts terrorism in the context of other national security threats our country has faced in the past, and challenges us to assess the threat of terrorism rationally.

Yesterday, security expert Bruce Schneier published a TSA Security Round-Up that might make you thankful just to get to and from your family home this holiday. Our country and government can do better.

Strange Justice

Today’s Washington Post has a report on how the U.S. military is punishing war crimes in Iraq. Prosecutors initially charged a Marine with murder. Later, prosecutors dropped that charge when the Marine agreed to plead guilty to engaging in a cover-up of the crime.

In return for Lance Cpl. Jerry E. Shumate Jr.’s guilty pleas to charges of aggravated assault and conspiracy to obstruct justice, the government dropped other charges, including murder, kidnapping, assault and conspiracy.

Shumate is one of seven Marines and a sailor charged with kidnapping Hashim Ibrahim Awad, 52, in the rural town of Hamdaniyah, dragging him to a roadside hole and shooting him, and then trying to cover it up.

The Marine will serve less than 2 years in jail. That’s a strange notion of justice. But the state has strange notions of how to apply the law–sometimes it is incredibly harsh and sometimes it is incredibly lenient. The less we pay attention, the worse it gets.

Judging Kyoto

Next Wednesday, the Supreme Court will hear oral argument in Massachusetts v. EPA, the blockbuster environmental case of the term. The issue: Does the Clean Air Act, a 1970s-vintage anti-smog statute, require the EPA to regulate greenhouse gas (CO2) emissions from new American cars? A number of states and enviro groups say “yes!” The EPA–in an exceedingly rare example of administrative self-restraint–says “no.” The stakes? Big: If the petitioners win, American carmakers may face the equivalent of Kyoto global warming standards, imposed by judicial fiat, despite Congress’s umpteen rejections of the Kyoto regime.

Cato filed an amicus brief on the EPA’s behalf, written by environmental law whiz Jonathan Adler and joined by lawprofs James Huffman and Andrew Morriss. Read it here. We argue that the petitioners lack standing to sue the EPA and also argue, for good measure, that nondelegation principles should counsel against creatively translating the Clean Air Act into a template for federal global warming regulation.

Cato’s intrepid Pat Michaels also filed a brief, joined by a number of other prominent climatologists, which tackles the dubious scientific claims of the environmental petitioners.

For more on the case, and its implications, Professor Adler recently participated in a panel discussion of the case at the American Enterprise Institute, which will be replayed on C-Span 2 tonight at 6 p.m. However, you can watch the archived video anytime here.

Born-Alive

Last week the British Nuffield Council on Bioethics published a report including step-by-step recommendations regarding the proper care of premature infants.  The Council recommended that infants born earlier than 22 weeks of gestation not be resuscitated and that infants between 22 and 23 weeks of gestation only receive intensive care if their parents request such care and the infant’s doctors agree.

There has been a flurry of commentaries in U.S. papers and blogs about the Nuffield Council’s recommendations, but not a single one that I have seen mentions the fact that in the U.S., it would be illegal to follow the Council’s recommendations.   In 2002 President Bush signed into law the federal Born-Alive Infant Protection Act and in 2005 DHHS Secretary Mike Leavitt stated “[w]e aggressively enforce federal laws that protect born-alive infants.  We issued clear guidance that withholding medical care from an infant born alive may constitute a violation of the federal Emergency Medical Treatment and Labor Act and the Medicare Conditions of Participation.”

It is nevertheless worth considering what the Nuffield Council has said to help put the Born-Alive Infant protection Act into perspective.   The Council’s report makes it clear that there is no realistic chance that a baby born under 22 weeks of gestation will survive and that infants born between 22 and 23 weeks have only a 1% chance of survival.  Furthermore, those few that do survive at 22-23 weeks are highly likely to suffer from severe handicaps.  (None of this information is limited to Britain.  U.S. statistics confirm these conclusions).  The Born-Alive Infant Protection Act requires health care professionals to try to save such babies. They must tape them down, stick them with needles and tubes, and resuscitate them – essentially, they are required to torture such babies until they die.  As a mother of four children and a Christian, I would want to hold and rock my little infant as it dies.  I wouldn’t want its precious few hours of life to be filled with pain and fear and never a mother’s warm embrace or soft voice.  It is a very cruel world indeed if the drafters of the Born-Alive Infant Protection Act knew they were going to require health care professionals to torture dying infants and deny parents the only realistic succor they have to offer – the physical affection that would tell such infants that, while their stay on earth is short, they are nevertheless loved.