Religion and the First Amendment

There is a lot of talk lately about the First Amendment. A lot of it centers on the misplaced preoccupation with “separation of church and state”. We throw the term around as loosely as a poorly packed cow pie on a wet day, assuming that the reference carries great weight with its intended audience. But like the assumption that an ancient coin bearing an image of Caesar belongs to Caesar, we often fail to consider what lies on the other side of the coin.

The First Amendment states that:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Curiously, the term “separation of church and state” does not appear anywhere in the Constitution, much less the First Amendment.

With respect to issues of religion, there are two differing interests in the First Amendment: the Establishment Clause (“Congress shall make no law respecting an establishment of religion …”), and the Free Exercise of Religion Clause (“Congress shall make no law … prohibiting the free exercise [of religion]”). Both clauses were originally intended by our nation’s founders to protect the individual’s right to exercise religion of choice, while prohibiting Congress from adopting an official government religion. Had separation of church and state been a concern, the founders would have said so. Except for the prohibition on Congress, they didn’t.

The individual’s right to worship freely, and to communicate those beliefs, was limited only by a compelling governmental interest that justified limiting individual rights. The challenges that would forever after be raised in that balancing of interests would make any Constitutional Law attorney’s cash register sing out for joy.

Take, for instance, the case of Draper v. Logan County Pub. Library, 403 F. Supp. 2d 608 (W.D. Ky. 2005). Kimberly Draper was a librarian in the Logan County Public Library. On occasion, she had the audacity to wear religious jewelry that included crosses, or religious T-shirts. In its efforts to impose its twisted view of separation of church and state on Ms. Draper, the Library enforced its dress code on her prohibiting clothing depicting religious, political, or potentially offensive decoration. In particular, the Library Director ordered her to remove a cross that she was wearing. When she refused, Draper was summarily fired.

Draper’s right under the Free Exercise Clause to wear the cross, and the Library’s intent to eliminate religious speech by its employees met head-on.

For Draper to prevail, she had to establish that:

(1) she was engaged in a constitutionally protected activity; (2) that the defendant’s adverse action caused her to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of her constitutional rights. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2002) (quoting Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir.2000)) (alterations in original).

To prove that she was engaged in a constitutionally protected activity, her actions had to fall within constitutionally protected conduct known as “expressive conduct” or “symbolic speech”. In other words, by wearing a cross, she had to have intended to convey a particular message that would have a great likelihood of being understood by those who saw it as carrying her intended message. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Second, Ms. Draper had to show that her conduct touched on a matter of public concern. Cockrel, 270 F.3d at 1048.

Once she met those requirements, the burden shifted to the government to demonstrate that her interest in speaking on this matter was outweighed by its interest in promoting the efficiency of its public services. (quoting Leary, 228 F.3d at 737); see Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987).

In holding in favor of Ms. Draper, the Court ruled that:

In determining whether contested speech addresses a matter of public concern, a reviewing court must question “the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives.” Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1189 (6th Cir.1995). Thus, speech that can “be fairly considered as relating to any matter of political, social, or other concern to the community” is protected, while speech involving matters “only of personal interest” is not. Cockrel, 270 F.3d at 1052 (citing Connick, 461 U.S. at 149-49, 103 S.Ct. 1684)….The phrase “public concern,” does “not mean matters of trancendent importance, such as the origins of the universe or the merits of constitutional monarchy; [it] mean[s] matters in which the public might be interested, as distinct from wholly personal grievances . . . and casual chit-chat.” Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir.1996).

Query, then, how jurisprudence could justify a nearly opposite holding in Daniels v. City of Arlington, Texas, 246 F.3d 500 (5th Cir.2001), in which a police officer’s act of wearing a small gold cross pin on his uniform was admittedly a symbolic [expression] of his religious beliefs — but intensely personal in nature, and did not constitute a matter of “public concern”.

Kimberly Draper’s cross was a matter of public interest. Officer Daniels’ cross was not.

The tortured reasoning behind the denial of Officer Daniels’ right to wear a cross suggests that courts will always find a way to do whatever they want to do. More’s the pity.

If the Constitution is our only protection from the abuses of government, and if those protections can be discarded like yesterday’s cheese, we live in imminent peril.

Nelson Mandela wrote: “When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.”

It may be time to break out the spurs.

Copyright © 2014 Gregory D. Lucas

Thoughts about “Bitmoney”

“Airplanes are interesting toys but of no military value.”
– Marshal Foch, 1911

We have all seen or read them – those quotes from men of old who said it could not be done. Such sentiments abound in the ranks of bystanders who lived to regret their short-sightedness.

In 84 AD, Sextus Julius Frontinus predicted that the implements of war had reached their apex – they could not be further improved.

In 1878, Western Union opined that the telephone could never be considered a practical form of communication, and that it had no inherent value.

In 1932, none other than Albert Einstein concluded that nuclear energy would never be obtainable, because it required splitting the atom at will.

The list goes on.

Not wanting to be numbered among those whose inability to believe prevents them from fully exploring what is possible, I avoid opinions about what the future holds. Rather than concluding that something cannot be done, I find myself in the camp of those wondering whether it should be done. Granted, that requires the imposition of one’s moral judgments on the subject, but I am certainly willing to be the moral conscience of society. (Strangely, no one ever asks me!)

The topic at hand is alternative currency.

It comes in many forms, from simple barter to the latest newsmaker – Bitcoin. A digital currency that exists only in the electronic circuitry of the computer world, Bitcoin is one of the latest indicators that people long to be free from the ravages of governmental regulation and control. Rightly or wrongly, Bitcoin was created to be free from the dictates of any central authority, deriving its value from a global system of supply and demand, free of currency manipulation (otherwise known as legitimized theft).

Like neighbors exchanging a shaker of salt for a cup of sugar, Bitcoin crosses international boundaries at the speed of light, enabling the business world to instantly trade goods and services free of the dictates of a central currency system. Bitcoin has no Federal Reserve to mint more Bitcoins at a whim; no government authority to spend their value into oblivion. Although Bitcoin transactions leave an electronic trail, tracking the trail to an individual participant is an extraordinary challenge, even for hackers.

Like frantic shepherds who learn that the sheep somehow got out of the paddock, federal regulators pull their hair as they try to find ways to regulate and tax that which slips through their fingers. The dance is almost comical, were it not for the unintended consequences. Government does nothing well. And there are always consequences for everything it does. Some of them are intended. For those, our politicians will someday answer to their Maker. Some are unintended, and those are usually the hardest to stomach.

The question remains, do we need alternative currencies like Bitcoin? Do they add anything of real or lasting value? Aren’t the Dollar, Euro, Peso or Pound enough?

The answer is yes. Why? Alternative currencies reintroduce reason into an unreasonable world. They provide a means by which people of good will can live together, work together, and cooperate to make each other’s lives a little easier, at least until government closes the loophole.

Assume, for example, that Molly and John work in the same business. John offers to buy lunch if Molly will cover his shift. It is a simple enough exchange – a form of barter. That sort of thing takes place ten million ways, ten million times every day. Molly receives the benefit of a meal, something having economic value, in exchange for her time. Molly’s basis in time is zero. The IRS considers that a form of taxable transaction. John receives services from Molly, which, if done often enough, may subject him to the reporting of payroll taxes on the value of meals provided during the year, while Molly must report the meals as additional income.

(In the hush that follows, someone moans, “You’ve got to be kidding!”)

In a world in which almost every aspect of our lives is monitored and subjected to the scrutiny of agencies, prying eyes, and greedy hands, it is good to know that somewhere someone is bucking the system. It gives us hope, and reminds us that just beyond our earthly realm is an Eden over which the IRS has no jurisdiction.

P.S. I recently saw two neighbors exchanging a cup of sugar for a shaker of salt. Someone should send them a 1099.

Copyright © 2014 Gregory D. Lucas

Baseball on Trial

Hot off the press, baseball is on trial. Not just baseball, but all sporting venues. Not just sporting venues, but anywhere you go to watch the action. Here’s the story…

Melky Cabrera, that colorful 29 year-old outfielder who faced a 50 game suspension related to a positive drug test, hit a line drive that landed the Atlanta Braves in the Georgia Court of Appeals. Bouncing off the head of an unwary six year old boy who suffered a cracked skull and traumatic brain injuries, the line drive raised an interesting and important legal issue. What responsibility does a sports team, or sports venue, have to protect those who attend the game?

The network buzz offers ample discussion of the case against the Atlanta Braves. What it does not offer is a question closer to home. What if the same injury occurred to a fan attending a home Mariner’s game? What would be the likely result?

Although the law of gastronomic jurisprudence is always potentially at work, the best insight is hindsight. Some years back, the Mariners faced a case in which a fan was hit by an errant pitch. Although the case resulted in an unreported decision, the law on which the case was decided offers a snapshot-in-time window as to how a future Court might rule.

The primary legal defense relied on a doctrine called “Assumption of the Risk”. Implied primary assumption of risk arises where a plaintiff impliedly consents (often in advance of any negligence by a defendant) to relieve the defendant of a duty regarding specific known and appreciated risks. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 497, 834 P.2d 6 (1992). The doctrine serves as a complete bar to recovery when an injury results from a risk inherent in the activity in which the plaintiff was engaged.

For many decades, courts have required professional baseball stadiums to screen some seats. Generally, those are the high-priced seats behind home plate. Spectators may choose to buy tickets for those seats, or at a somewhat lower cost, assume the risks associated with sitting in unscreened areas. When they do so, they also assume the risk of being hit by a ball. See Leek v. Tacoma Baseball Club, Inc., 38 Wn.2d 362, 229 P.2d 329 (1951). One who participates in a sport, even as a spectator, assumes the risks that are inherent in the sport. To the extent a plaintiff is injured as a result of an inherent risk, the plaintiff is barred from recovering for injuries sustained.

But that is not the whole picture. Once a defendant establishes that the plaintiff assumed the risks, the defendant must also show that the plaintiff had full subjective understanding of the specific risk, and voluntarily chose to encounter the risk. Brown v. Stevens Pass, Inc., 97 Wn.App. 519, 523, 984 P.2d 448 (1999) (citing Kirk v. Washington State Univ., 109 Wn.2d 448, 453, 746 P.2d 285 (1987); see also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 68 at 487 (5th ed.1984)).

The question is whether, at the time of the decision, the plaintiff actually and subjectively knew all facts that a reasonable person in the defendant’s shoes would know and disclose. Erie v. White, 92 Wn.App. 297, 303, 966 P.2d 342 (1998).

In this case, would a fan actually and subjectively know that a game involving hurled spherical missiles at high rates of speed (the faster the better), smashed by heavy sticks of wood such that the spheres fly great distances, know and understand that someone that was sitting in the path of flight might actually be hit?

Except in Washington and Colorado, where the adoption of laws that permit the inhaling of funny fumes are becoming trendy, the answer is intuitively obvious to the casual observer. We sit in the cheap seats because they are cheap. We sit in the cheap seats to catch fly balls, and foul balls, and whatever balls come our way. We even hope that balls will come our way. Why, then, should we cry “foul” when we miss the catch?

Gentle reader, support the Mariners. Support the Seahawks. Support your team of choice. But if you are not prepared to see the ball up close, stay home.

Copyright 2014 Gregory D. Lucas

Beware: Federal Quicksand at Work

Earlier this month, Cornerstone Research, a multistate economic and financial consulting firm, released a study on the characteristics of FDIC lawsuits against the key personnel of failed financial institutions.1 Among its key findings was that the FDIC had filed fourteen more lawsuits in 2013 against the directors and officers of failed financial institutions than in 2012. Average damages in 77 of the 84 lawsuits filed since 2010 were approximately $49 million. 17 of those settled for unspecified amounts. Not all of those targeted directors and officers.

The report graphically showed a dramatic rise in the number of such lawsuits filed since 2010. The good news was that the pace of failures of financial institutions was slowing, with 24 failures in 2013, the lowest number since 2008. In addition, the asset size of institutions failing in 2013 was generally lower than in earlier years. The bad news was that there have been at least 489 institutional failures since 2008. As an aside, the FDIC took control over 427 banks during the period from January 2008 to March of 2012. In the preceding 5 year period, the FDIC took over only 10.

There is no question that a large share of the responsibility is on the backs of bankers who took inordinate, unreasonable and unjustified risks prior to the economic collapse. But the fault does not stop there. The myriad failures of a federal regulatory system designed to breed uncertainty and inconsistency in everything from government bailouts, to restrictive policies in the Federal Reserve Act designed to inhibit the operation of the free enterprise system, to the patently unconstitutional Dodd-Frank Act must share the blame.

Giant federally supported banking institutions are positioned to loan. Smaller independent banks are subjected to higher funding costs and stricter regulations, insuring their inability to compete, courtesy of Dodd-Frank. If financial firms that are deemed “too big to fail”, firms whose failure might cause systemic havoc, are assured of governmental assistance when failure is possible, their incentive to exercise market discipline, and to prevent financial risk-taking, is virtually eliminated. If small institutions are faced with higher lending costs and increased oversight and regulation, they exist at the mercy of the regulators pulling their strings.

The real wonder is that only 489 institutions failed.

Dodd-Frank created two new governmental institutions that small banks, and the American public, must swallow. The Consumer Financial Products Bureau (“CFPB”) and the Financial Stability Oversight Council (“FSOC”) are creations of the current administration; two independent public czars appointed by the President without the consent of the Senate, who operate outside the normal checks and balances offered by the three branches of government.

Understand that CFPB is funded by the Federal Reserve System. But because it operates outside the normal checks and balances system, it operates beyond Congressional oversight. It has the power to assume responsibilities of the Federal Reserve, the FDIC, the FTC, and even the Department of Housing and Urban Development. It has the power to write and enforce rules for financial institutions, again, beyond Congressional oversight. It even has the unilateral authority to control individuals’ retirement savings, and to compel us to buy federal debt.

In every society, we trade freedom for security, and security for freedom. The trick is to find a balance that meets our need for both. One end leaves us with anarchy; the other with tyranny. Often attributed to President Dwight D. Eisenhower is the statement that, “Every step we take towards making the State our Caretaker of our lives, by that much we move toward making the State our Master.”

The pillars of a democratic republic are feeling shaky. As we trade Constitutional protections for benevolent despotism, you can almost feel the quicksand beneath your feet.

1 “Characteristics of FDIC Lawsuits against Directors and Officers of Failed Financial Institutions”, dated February 2014, Cornerstone Research. For a complete copy of the report, see: http://www.cornerstone.com/getattachment/bbf34483-d4b4-4084-8915-ee7dbdb1dbae/Characteristics-of-FDIC-Lawsuits-against-Directors.aspx.

House Offers Qualified Hope to Wounded Veterans

On January 13, 2014, the State House again took under consideration House Bill 1214. Briefly stated, HB 1214 exempts from property taxes veterans with one hundred percent service-connected disabilities and active duty members of the armed forces, National Guard, or Reserves who have incurred a catastrophic injury in the line of duty. The Bill has been around awhile. It was first introduced a year ago and sent to the Finance Committee, reintroduced in May of 2013, reintroduced in November of 2013, and reintroduced in January.

This is a bill that deserves action. The Bill’s heart is in the right place, although the devil is in the details. Our veterans deserve every consideration we can give them. But ask any veteran, and you will learn that they are a proud bunch. They have a right to be. By putting on a uniform, and pledging to “…support and defend the Constitution of the United States against all enemies, foreign and domestic, …”, our service men and women willingly put their lives in peril for our sake; for freedom, for our children, for those too cautious to take such risk. We owe them something; not as an entitlement, but as the repayment of a debt. There is a difference.

Some debts are harder to repay than others. How do you meaningfully thank a warrior who died in battle? By taking the family camping on Memorial Day? How do you honor the woman whose leg was blown off while serving in Afghanistan? Our veterans carry the scars of battle in ways we can never fully understand. Yes, it was their duty. They know it. But it was also our duty. Protecting liberty is not the unique role of those in uniform. We all have that duty. Those in uniform volunteer to take our place, doing our duty for us. Therein lies a debt to repay – our debt.

HB 1214 has its flaws. For example, it exempts property taxes for claimants over the age of sixty-one, who are retired from gainful employment by reason of disability who have a one-hundred percent service-connected disability rating; or active duty service members who suffered a catastrophic loss within twenty-four months prior to the date of application for exemption. The rationale behind the restrictions appears to be the sort of legalism you might expect from one wanting to close loopholes.

HB 1214 also imposes limitations on the benefit based on disposable income. If someone whose body is wrecked in combat somehow is able to make good in civilian life, the benefit effectively goes away. In other words, if their lives are irretrievably altered by service-connected wounds, they must prove that they deserve what amounts to welfare based on their inability to pay property taxes. Again, the limitation is nonsense. It may make budgetary sense to a state bureaucrat. But it gives short shrift to the ones who put themselves in harm’s way for us.

Perhaps our legislators should ask themselves this question: Did our soldiers pledge to support and defend only those of us who can demonstrate an inability, based on income, to defend ourselves? If not, why would we only offer to repay our debt to them, only if they really need it? The notion is absurd. Balance the budget, yes, but not on the backs of our veterans.

This is not tough. Exempt all service men and women who suffered catastrophic losses in the line of duty from paying property taxes – no exemptions, no restrictions, no delays, no excuses. They deserve it. Do it now. It’s the right thing to do.

An Editorial View from the Cheap Seats

The next few months are shaping up to be some of the most contentious we have seen in recent history. With the Bush tax cuts expiring in 2013, the estate tax unified credit reverting back to a one million dollar exempt amount, and sharp divisions arising in Congress and among the voting public, this promises to be a lively election season. At stake is not just the outcome of a Presidential election, but a national referendum on the ultimate fate of the Constitution.

The choice we make is not simply a choice of candidates. It is, rather, a question of balancing security against personal freedom. More of one always leads to less of another. As the recent Supreme Court decision on the fate of Obamacare demonstrated, government intervention into matters of personal choice for the sake of “reform” demands the continued erosion of individual freedom.

But unintended consequences have a way of making bad things worse. There are some trends to watch for as the health care crisis unfolds:

● Employers faced with economic hardship will be forced to choose between paying annual per employee penalties versus paying the skyrocketing costs of providing health care. Many will opt for the penalties.

● Everyone will face greater government regulation and intervention, leading to higher taxes, and less freedom.

● Older citizens will find that they have less access to needed care, and will become increasingly dependent on the government.

● A graying population of “Baby-Boomers” will rely on a proportionally smaller population of young workers to fund unsustainable entitlements. The fallout will be reduced benefits for the elderly, increased costs for the young, government growing out of control, and an unsustainable economic burden on virtually everyone.

When Speaker Nancy Pelosi said, “We have to pass the bill so you can find out what’s in it…”, she demonstrated the incomparable foolishness of acting and speaking rashly. When we elect public officials, we vest in them a profound trust that they will act judiciously, prudently, and with the utmost of care. All indicators point to the fact that they failed us. We deserve better.

Your vote matters. Use it wisely.