"To celebrate the holidays in his public high school science lab, Stuart Ross Rosenthal decided he would make a 'chemist-tree.'"

"He pieced together a colorful branching array of test tubes and Erlenmeyer flasks, and a few antique chemical stock bottles, filled them with various salt and mineral solutions, and then stacked them on a stand of porcelain rings. After encircling the base with a wintry-white towel, he placed a few glistening rock 'presents' under the tree and surrounded them with Bunsen burner 'candles.'"

And to celebrate the holidays in my public internet creative writing class, continue the story. What happens next?

In the actual case of the high school chemistry teacher — Stuart Ross Rosenthal — there was no discord and divisiveness and certainly no — to use James Madison's phrase — torrents of blood. Rosenthal (who's Jewish) is able to affably quip:

"If people say, 'Oh, I like your Christmas tree,' I say, 'It's a chemist-tree – nondenominational... People can argue about religion, and they can even argue with science – but you can't argue with scientific glassware."

Oh, yeah? If you are working on the creative writing exercise in my class, I'll bet you can concoct — or decoct...



... a vicious fight over the the scientific glassware. Rosenthal has substituted an exaltation of science for the celebration of Christ! This is the government's insidious effort to establish a religion of secularism!

Are you keeping your leaves and, if so, have you shifted into bullying your neighbors who still put their leaves out to the curb for pickup?

We keep our leaves (and even take in some neighbors' leaves), and Meade has a composting process that takes a form I like to call an art installation. I've shown photographs of the various stages. Here's how it looked 9 days ago:



Anyway, we don't go around shaming the neighbors who dump their leaves at the curb for city pickup, which costs tax money and involves a lot of truck driving that's harmful to the environment, although if they read my blog they might feel a little bad about it.

But this NYT article — "Rake the Leaves? Some Towns Say Mow Them" — ends with an anecdote about a lady who's gone into shaming mode:

In northern Westchester, Fiona Mitchell of Bedford is a mulching convert... And she has become something of a proselytizer for the practice among her neighbors and those in other towns.

“I’m afraid I’m becoming a bit of a mulching police,” she said. “My friends call out, ‘I’m mulching, I’m mulching,’ when I walk by their houses.”

The boldfacing is mine, to explain the tag I'm putting on this post: religion substitutes. That's a tag that frequently goes along with another one of my tags: environmentalism. I once wrote an exam for my Religion and the Constitution class that had a school district arguably violating the Establishment Clause with its environmentalism rituals and recitations.

The Supreme Court's religion and the Constitution cases "satisfy no one — including the Justices" who go on "fact-free intuitions about religion..."

"... which vary with their attitudes toward religion, which in turn derive from their religious beliefs and affiliations, or lack thereof." They "form confident views without any empirical basis."

Fact-free constitutional adjudication is abetted by constitutional lawyers (prominently including professors of constitutional law), who “know little about their proper subject matter— a complex of political, social, and economic phenomena. They know only cases. An exclusive diet of Supreme Court opinions is a recipe for intellectual malnutrition.”

Writes Judge Posner in "Reflections on Judging" (quoting himself in an earlier book). Here's his footnote summarizing the mess in the case law:

See, for example, Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398– 99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late-night horror movie” that can’t be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart”).

I'd have given credit to the Justices responsible for those vivid words — Thomas and Scalia, respectively. 

AND: By the way, quoting Scalia and Thomas doesn't very well support the proposition that no one is satisfied (though the proposition is probably true or close to true).

I do a Bloggingheads with Glenn Loury that's ostensibly about whether Obama has weakened and what the NYC police are doing after stop and frisk.

The folks at Bloggingheads put it this way:

On The Glenn Show, Glenn and Ann check in on Obama a year into his second term. Has his vacillation on Syria and the Fed hurt his credibility? Ann argues that the Larry Summers controversy exposed an anti-science crowd on the left—but maybe a small dose of delusion is healthy. Turning to the end of NYC's stop-and-frisk program, Ann worries that emotions adulterated the public debate. Are liberal gun-control measures breeding a nation of victims? Finally, Glenn criticizes the secrecy of the security state under Obama.

There's an awful lot going on in that diavlog, and I think we talk past each other more than usual. "Ann worries that emotions adulterated the public debate" is a terrible summary of what I say. 

Go to the link if you want to hear the whole thing. I'll excerpt a part that deals with something I care about: the unlikelihood that anyone is really making truth their highest value.



I'm highlighting what I had to say, so click to continue the video when you get to the end of this clip if you want to hear Loury's response. The lead-up to this clip is about the trouble Larry Summers got into at Harvard when he suggested that there might be a biological explanation for the scarcity of females in the highest levels of math and science.

Please take my Establishment Clause test.

The Freedom From Religion Foundation sued to have the motto "In God We Trust" taken off U.S. money. The federal judge, applying a familiar old doctrine, dismissed the suit, saying "the Supreme Court has repeatedly assumed the motto's secular purpose and effect."

Here's my test: You have 30 seconds. Don't read the article and don't look anything up. Write one sentence articulating a secular purpose for having "In God We Trust" on the money. Do the best you can — that is, be on against the Freedom From Religion side for the purposes of this exercise.

ADDED: I will read all the comments later today and pick some winners, but after reading a few, I feel like saying that the requirement that a law have a secular purpose can be diminished to nothing if you accept the proposition that there is a secular purpose for religion. Government can always say it is using religion to mollify/control/improve people for worldly ends. The argument would be that as long as religion is the means and not the end, it's a secular purpose. Note that complete atheists could embrace this kind of religion (and I assume they have throughout history all over the world).

CORRECTION:  The original post said "on" where it should have said "against." That was confusing, and I'm very sorry. It makes no sense — perhaps you noticed — to articulate the FFR side, which is there is NO secular purpose. The idea is to come up with a secular purpose, and I wanted you to do your best at that, even if you'd prefer to see FFR win this.

"Typical observers of [Big Mountain Jesus] are more interested in giving it a high five or adorning it in ski gear than sitting before it in prayer."

Said the District Court, rejecting an Establishment Clause challenge by the Freedom From Religion Foundation, and prompting the First Things blog to say:

It’s unfortunate that current doctrine favors the trivialization of a religious symbol as evidence of its constitutionality, but that’s where we are. (Remember the candy canes and reindeer around the creche?)

Yeah, well, you know how to keep religious symbols from getting trivialized? Keep them away from the government. 

Roger Williams, “Mr. Cotton’s Letter Lately Printed, Examined and Answered” (dated 1644):

When they [the Church] have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the Candlestick, etc., and made His Garden a wilderness as it is this day. And that therefore if He will ever please to restore His garden and Paradise again, it must of necessity be walled in peculiarly unto Himself from the world, and all that be saved out of the world are to be transplanted out of the wilderness of the World.

But you may enjoy the wilderness, when you're out there skiing on Big Mountain and you encounter Jesus and give him a mitten or a high 5.

"Religious freedom does not mean freedom from religion."

"People of faith too often feel they can't express their faith publicly. And if they dare display it, they find themselves under attack from individuals and organizations that have nothing to do with them or their communities for that matter," said Rick Perry, signing the "Merry Christmas" bill.

One might wonder why such a law is necessary. Republican state Rep. Dwayne Bohac, who introduced the bill, explained how he had become upset upon hearing from his 8-year-old son that the Christmas tree at his public school was referred to as "a holiday tree."

Bohac said he brought his concerns to the school district office, where he was told words like "Christmas" weren't used at the school because officials were afraid of being sued.

As if, now, no one's going to get sued. Or is that the point? If the school officials avoid saying "Merry Christmas" and having Christmas trees because they are litigation averse, there's never a lawsuit. I think Perry et al. would love to have a lawsuit about this, even if they think they will lose it. There's political gain in any legal outcome.

And yet, even with this law, those officials might still avoid saying "Merry Christmas" and having Christmas trees because of timidity about lawsuits. It's not as if the new statute requires Christmas trees and Christmas greetings.

Perhaps all that ever happens is this political theater with Rick Perry celebrating Christmas in June. Perhaps that was the point.

ADDED: Perry's phrase "organizations that have nothing to do with them or their communities" is sending out the bat-signal to Madison's Freedom From Religion Foundation. 

RIP, Alton T. Lemon — the Lemon of the Lemon test.

"Mr. Lemon’s lawsuit challenged a 1968 Pennsylvania law that reimbursed religious schools for some expenses, including teachers’ salaries and textbooks, so long as they related to instruction on secular subjects also taught in the public schools."

Chief Justice Warren E. Burger, writing for the court in Lemon v. Kurtzman, said the law violated the First Amendment’s prohibition of government establishment of religion.

The ruling set out what came to be known as the Lemon test, which requires courts to consider whether the challenged government practice has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion....

The lawyers for the plaintiffs put Mr. Lemon’s name first in the caption of the case.

That was no accident, Professor Laycock said. The case was decided against the backdrop of resistance to the desegregation of public schools, and the choice of Mr. Lemon, who was black, underscored the point.

Alton T. Lemon died on May 4th at the age of 84.

"It's easy to make fun of the folks in Georgia who don't want schools to use the word 'evolution' when teaching science..."

"But how different is it, really, from proposals to resolve the gay marriage issue by using the term 'civil unions' instead of 'marriage'?"

I think that's my first post about same-sex marriage, on February 3, 2004 — 3 weeks into blogging. I was looking for that post — which critiques presidential candidate Howard Dean's pride in the marriage/civil unions distinction — as a result of reading the Ted Olson/David Boies op-ed in the WSJ today.

Googling for the old post with the search terms althouse + Howard Dean + civil unions, I was surprised to find something I'd written in December 2003. That's the month before I started this blog. It turns out there's an archive from the Religion Law email list — a list of lawprofs — and there's a thread I started called "Civil unions and marriage."

Email lists were a sort of proto-blogging back then. I wish I'd busted loose into blogging earlier. All the bloggable things that didn't get blogged:

We chose not to do gay marriage because there were many people who felt that marriage was a religious institution, and churches ought to be able to make their own decisions about who gets married and who doesn't. But we felt it was really important to do equal rights under the law for every single American, and Vermont is the only state in the country where everybody has the same rights as everyone else....

[So why are we quibbling over a name?]

Because marriage is very important to a lot of people who are pretty religious.  

That was Howard Dean, back in 2003. Today, in the Supreme Court, we're still "quibbling" over that name. Is it a tiny thing or a big deal?

Scott Walker proposes expanding the school voucher program beyond Milwaukee and Racine...

... to 9 new districts, including — gasp! — Madison.

Here's what Walker said last night in his budget speech:

For communities where some schools fail to meet expectations, we include an expansion of the parental choice program in this budget. Since wealthy families have a choice because they can pay to send their children to a private school, we give low income and middle class families an opportunity to also choose a viable alternative for their sons and daughters.

Interestingly, some communities have both high-performing schools, as well as some that fail to meet expectations. Green Bay is a good example. Keller Elementary in Green Bay is a school where more than 70 percent of students are economically disadvantaged, yet Keller Elementary exceeds expectations. In this budget, schools like this will be eligible for a performance reward. At the same time, in that same district, there are other schools that fail to meet expectations. Other districts like Madison, Beloit, Sheboygan, and West Allis/West Milwaukee have similar situations.

People in Madison like to think we have fabulous public schools, so it's rough seeing Madison grouped with those other places. And of course, people in Madison tend to loathe Governor Walker. Obviously, the liberal viewpoint is that if there's a problem with the public schools, more money should be given to those public schools, not diverted into private schools. Here's the discussion in the forum over at the Isthmus, where liberal Madisonians tend to talk amongst themselves (and where Meade injects a bit of the kind of diversity they don't celebrate). I love the way the separation-of-church-and-state topic is playing out. First:

Does it bother you that taxpayer money will be spent for sectarian religious instruction?

Someone else:

If my kid went to a school with overcrowded classrooms and wasn't getting the attention he or she needed for whatever reason, I wouldn't hesitate sending him to a Catholic school if I could for free. Would you? Would you put up with a crappy classroom just because you didn't want your kid to take a half-hour of Bible study each day? I don't know many parents who would in a similar situation....

A third person (boldface added):

I don't think anybody's really upset about vouchers to send kids to Catholic schools. The Catholic schools can't take many more kids, but they are run by local parishes and nuns with good intentions and without a profit motive. It's not foremost a constitutional issue but a quality one. We're upset about a bunch of profit-motive business types setting up private schools to make money for themselves by providing services that work poorly and exploit public funding the same way the University of Phoenix does with adult students. Why anybody thinks replacing so-called overpaid teachers with overpaid executives is an improvement beats me. And that's exactly what we'll get if we don't guard against it at every turn.

The lefties really hate business! Meade provides the comic pushback. Quoting "bunch of profit-motive business types":

But enough about the teachers' unions. School choice is coming to Madison. Choice is good.

Yoga in public schools — an Establishment Clause problem.

NPR has trouble seeing the objection. This kids are stretching, readying their minds for learning, don't you know? But here's one mother's report:

"They were being taught to thank the sun for their lives and the warmth that it brought, the life that it brought to the earth and they were told to do that right before they did their sun salutation exercise"...

The woman, Mary Eady, was able to take her son out of the classes — which is an appropriate accommodation but insufficient to solve an Establishment Clause violation. (In the old prayer-in-school cases, excusing the students who chose not to pray did not suffice.)

The school's program was richly funded by the K.P. Jois Foundation, whose Hindu founders connected yoga to their religion.

"It's stated in the curriculum that it's meant to shape the way that they view the world, it's meant to shape the way that they make life decisions," Eady says. "It's meant to shape the way that they regulate their emotions and the way that they view themselves."

"And then the question becomes — if it is religious, which it is, who decides when enough religion has been stripped out of the program to make it legal?" [says Dean Broyles, president and chief counsel of the Escondido-based National Center for Law and Policy]. "I mean, that's the problem when you introduce religion into the curriculum and actually immerse and marinate children in the program."...

"It is the stated goal of both the Jois Foundation and the district itself to prove scientifically that Ashtanga yoga works for kids here in the district and then export it nationally," Broyles says.

The Jois Foundation has a director, Eugene Ruffin, who is himself Catholic and who says the values taught in the program aren't specifically Hindu. But making religion generic doesn't solve your problem. Consult the original Warren Court school-prayer case, Engel v. Vitale, which involved a prayer concocted by the state that stripped out all denominational specificity.

My position — explained here in the context of Kwanzaa — is that the government should not use schools for exercises that reach into the spiritual aspect of the child's mind. Quite aside from whether courts would see an Establishment Clause violation, it should be rejected as a policy choice. Even where you have trouble deciding whether something is religion or not, if it's a religion substitute, operating like religion, you should be revolted by the government intruding into the sphere that belongs to the individual, parents, and private organizations. And on this ground, I would object to all sorts of indoctrination and idol-worship. Public schools must be committed to teaching real substance of the secular kind. Think: math and science.

ADDED: Imagine if a Christian foundation were handing out huge grants to public schools to adopt a program based on its values, with generic prayer-like incantations led by the teacher. Would NPR and its devotees be nodding calmly at how nice it was?

ALSO: NPR quotes the mother's attempt at paraphrasing the prayer-like incantation. I'd like to see the actual text that the school uses! Here's some material at the Jois website, but it doesn't show the text I'm looking for.

Wisconsin state senator Glenn Grothman caught up in a flap about Kwanzaa.

CNN's Ashleigh Banfield and Roland Martin pile on.

Here's Grothman's press release — PDF. I had to wonder why a state senator was attacking a holiday that some people like to celebrate. What business is it of his? He talks about the origins of the holiday (which I haven't independently researched) and asserts that it's not a "real holiday." But so what? It's usually just not a very good idea to make pronouncements about the truth or falsity of other people's religions. He ends the press release with the statement: "Be on the lookout if  a K-12 or college teacher tries to tell your children or grandchildren it's a real holiday."

Okay, is something going on in public schools? Are they celebrating Kwanzaa? That would obviously be wrong — a violation of the Establishment Clause. But Grothman seems to be merely saying that teachers might be teaching about Kwanzaa in perhaps a social studies lesson about the various holidays that are celebrated. I suppose we should be alert to whether teachers are feeding schoolkids inaccurate lessons, but the characterization of Kwanzaa as a holiday isn't an egregiously incorrect fact.

We could go deeply into the subject of what makes a holiday a real holiday and debate about whether Kwanzaa is in or out. It depends on how you define holiday. Or we could debate about what constitutes a sound social studies lesson. We don't want kids to hear that white people celebrate Christmas and black people celebrate Kwanzaa or that Africans arriving in the New World brought a Kwanzaa tradition with them.

Grothman ought to give us the specifics about defective lessons in schools and aim the criticism right there. Don't just tell us to be on the lookout for teachers who might dare to refer to Kwanzaa as a holiday.

"A federal court in Indiana has rejected atheists’ requests to preside at wedding ceremonies..."

"... saying only clergy or public officials are licensed to solemnize marriages."

A lawsuit filed by the Indiana chapter of the Center for Inquiry argued that an Indiana law that requires marriages to be “solemnized” — made official by signing a marriage license — only by clergy, judges, mayors or local government clerks — violates the Constitution.

If you don't want a religious officiant, you're forced to use a government official. In Indiana.

May I suggest Colorado, where you can be your own officiant?