Tonight, we take a look at the constitutionality of nativity scenes on public property. Before we get to that, a little background first.
Every Tea Partier knows you won’t find the words ‘separation of church and state’ in the Constitution, that the phrase comes from a letter Thomas Jefferson wrote in 1802. Supreme Court Justice Blackmun referred to Jefferson’s words while importing the notion of separation of church and state into the First Amendment on his own motion in 1947.
The establishment clause of the First Amendment reads: “Congress shall make no law respecting an establishment of religion….” What does it mean to ‘establish’ a religion? When my own state of Virginia was a colony, the legislature in 1624 set up an established church. It was mandatory for all whites to worship in the officially approved Church of England and support this Anglican Church with their tax money. In addition, all public officeholders had to be Anglican. The legislature controlled the creation of new parishes and set salaries for ministers. This is the kind of thing – theocracy, essentially - that the First Amendment establishment clause was intended to prevent.
When compared to what happened in the Virginia colony, does a nativity scene in a public park ‘establish’ a religion? Hardly. But Supreme Court logic has deemed it so. “[T]his Court has never relied on coercion alone” in interpreting the establishment clause of the First Amendment, Justice Sandra Day O’Connor wrote concurring in the result of a 1989 case. [Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. at 627-628, O’Connor, J. concurring; quoted in Chemerinsky, Constitutional Law: Principles and Policies (4th ed. at 1242]
Thus, under Supreme Court precedent, government can violate the establishment clause just by favoring one religion over another, appearing to approve or disapprove of a particular religion, making members of other religions feel unwelcome, or otherwise ‘endorsing’ a religion. Under Supreme Court jurisprudence, the First Amendment in effect now reads ‘the government shall make no law constituting an endorsement of religion. The word ‘establishment’ has essentially been read out of the First Amendment.
And so we arrive at court cases prohibiting nativity scenes at county courthouses, public parks, and other public spaces. Clever people soon found a way around this by combining other symbols with Christian symbols in Christmas displays. In 1984, the Supreme Court OK’d a nativity scene in a park that included a Santa Claus house, plastic reindeer pulling Santa’s sleigh, and hundreds of colored lights along with a crèche representing the birth of Jesus. The Court concluded that the display served legitimate secular purposes, such as celebrating a holiday and depicting the origins of that holiday. Five years later, five justices voted to strike down a stand-alone nativity scene at a county courthouse while, in the same case, six justices approved a holiday display outside a city building consisting of a Christmas tree, a Jewish menorah, and a secular sign saluting liberty.
So the law is pretty clear at this point. The ‘reindeer rule’, as some have called it, is in full force and effect. Mix enough other symbols in with your crèche and your nativity scene passes constitutional muster. Leave the reindeer out, and you can’t have your nativity scene in a public space because it would ‘endorse’ the Christian religion.
Before you decide whether you like the ‘reindeer rule’ or not, let’s change the facts. Instead of a nativity scene, imagine a display - left up the entire month of Ramadan - depicting a Muslim star and crescent, a scimitar, and women in burqas, outside the city building in Hamtramck, Michigan which has elected a Muslim-majority city council. Suppose also that the display includes a black flag inscribed with Islam’s holy words “Muhammad is the messenger of God” – the ISIS battle flag, in other words. Now what do you think? Would you want this display considered constitutional if a few reindeer were sprinkled in?
In 2006, a federal appeals court approved a school display containing a Jewish menorah and Muslim star and crescent. In the court’s view, the display served a secular purpose – promoting tolerance and diversity – and did not promote the Jewish or Muslim religions.
Suppose a court were to rule that my fictional Hamtramck display – ISIS battle flag and all – was constitutional because Rudolf the red-nosed reindeer was enough to make it serve a secular purpose of promoting diversity.
My imagined display would be constitutional under the reindeer rule and, thus, under the current ‘no endorsement’ construction of the First Amendment establishment clause. It would also be constitutional under a strict reading of the establishment clause that only prohibited setting up a state religion and coercing people into it.
So what possible rule could prevent this display? Perhaps stricter separation of church and state than even Justice Blackmun imagined.
That may not be what Tea Partiers want to hear but, as noted in a previous Constitution Minute, the changing demographics of the country will give rise to new constitutional questions and the further evolution of the understanding of religious liberty in America.
At the end of November, the Supreme Court heard oral arguments in Carpenter v. United States, a Fourth Amendment case presenting the question whether the government can obtain months of cell tower records revealing the location and movements of a customer without a warrant. That kind of information placed Carpenter near the scene of some robberies and helped convict him of aiding and abetting.
The government argued it did not need a warrant because of the “third-party doctrine”. Under this doctrine, the Fourth Amendment does not apply because the records were considered ‘voluntarily’ given to the phone company. A prior case held that the government can get your bank records without a warrant because, a) the records belong to the bank, not you; and b) you are deemed to have no expectation of privacy in those records. [U.S. v. Miller, 1976] Because of the third-party doctrine, the lower appellate court in the Carpenter case ruled the defendant could not reasonably have expected that the phone company would keep his cellphone records private. Accordingly, the government could obtain his records without a warrant, that court ruled.
During Supreme Court arguments, however, Justice Kagan wanted to know how this case was different from United States v. Jones, a 2012 case holding that the government cannot put GPS devices on people’s cars and track them for a month without a warrant. She wanted to know how warrantless 24/7 tracking by GPS is different from warrantless 24/7 tracking using cell tower data. Justice Sotomayor elaborated on this, saying it’s a fundamental concept that Big Brother should not be able to pinpoint your location any time it wants without probable cause and a warrant. People invest a lot of themselves in their cellphones now and the law needs to protect their new expectations of privacy, these justices were essentially saying.
Justice Gorsuch, on the other hand, took a property rights approach to the Fourth Amendment. He cited a federal statute that imposes a duty on phone companies to keep customer data confidential. This is enough to create a property interest in the data, he said, so the government cannot seize the customer’s property without a warrant any more than it could invade someone’s property to put a GPS device on it without probable cause. [More on the property rights rationale here.]
So here we have two different theories of the Fourth Amendment - the ‘expectation of privacy’ theory and the property rights rationale. Property rights is in the ascendancy and actually got five votes in the earlier Jones case while four justices got to the same result on expectation of privacy. But expectation of privacy has been the mainstay of Fourth Amendment jurisprudence for decades and was the theory under which the Supreme Court required the government to get a warrant before searching actual cellphones in the 2014 Riley v. California case.
The two theories won’t always lead to the same result. For now, both theories are available to criminal defendants. The upcoming decision in the Carpenter case will tell us whether the Supreme Court is willing to run further with the property rights theory, or will pull back and rely on the previously dominant expectation of privacy rationale, instead.
More Constitution News at Liberato.US
The ongoing tussle* at the Consumer Financial Protection Bureau is still in court. It’s a contest between two statutes – Dodd-Frank and the federal Vacancies Reform Act - but the CFPB itself raises larger constitutional questions relating to the separation of powers.
Article I vests all legislative power in Congress. Congress is not supposed to delegate that power but, of course, it has on multiple occasions in creating regulatory agencies. The New Deal changed everything in this regard. The nondelegation doctrine remains good law on paper, but no agency has been struck down since the Supreme Court caved in to the New Deal, and no agency regulation has been invalidated as an unconstitutional delegation of power since 1935.
The result is we now have federal agencies that combine the Article I, II, and III legislative, executive, and judicial powers in a single entity. Agencies make rules, enforce the rules and, through administrative law judges (ALJs), act as judge and jury with regard to violations of the rules. James Madison wrote in Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
Because we departed from the Founders’ design, we are faced with the problem of trying to put some law, some structure, around entities that were never contemplated in the Constitution in the first place.
In October 2016, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit found the CFPB unconstitutional because, in the panel’s view, it places too much authority in the hands of a single, unaccountable director. The executive branch usually has the power to control subordinate officers at federal agencies, but an exception was created in 1935 for what are called independent agencies under the New Deal. The FCC, SEC, and FTC are examples of independent agencies. The CFPB is an independent agency under Dodd-Frank. A President cannot fire the directors of independent agencies except for cause.
The three-judge panel called independent agencies a ‘headless fourth branch of government’ with enormous unchecked power. One problem with unchecked power is that the CFPB (like the Obama Justice Department) plays the sue & settle game. It shakes down financial companies for money and gives the money to left-wing advocacy groups like Planned Parenthood and the National Organization for Women. They turn around and funnel some of it to the Democratic Party. The whole thing is corrupt.
One standard check on power is to have a body of commissioners like at the FCC -multiple directors, in other words. But the CFPB has only a single director. It’s the first time an independent agency has been headed by a single person. To rein things back in, the three-judge panel struck down that part of the CFPB statute saying a President could only fire the CFPB director for cause. So as it stands at this moment, a President can now fire the CFPB director at will – that is, for a good reason, a bad reason, or no reason at all - and the President may supervise the director’s activities.
The CFPB case was reheard by the full D.C. Circuit Court of Appeals in May 2017.** There is no ruling yet, but you can bet this case is headed to the Supreme Court whichever way the Court of Appeals rules.
To recap: first, Congress was not supposed to delegate its power to agencies, but it did. Then came the administrative state and alphabet-soup independent agencies with multiple commissioners in the New Deal. Now we have the CFPB with enormous power in the hands of a single director who attempted to name his own successor under Dodd-Frank. Where are we going with this?
We’re a long way from clear-cut separation of powers. And we could drift further still. There’s nothing magic about the multiple commissioner / single director distinction the three-judge panel drew. There are no objective standards in the Constitution or elsewhere as to what is adequate separation of powers and what is not. The Supreme Court could say, when it comes to the CFPB’s single director, no problem, keep right on going, the outer limits of permissible mingling of powers have not been reached. Who knows where this will end.
What would Ben Franklin say? He would probably say, ‘this is what you get for setting up unconstitutional agencies in the first place.’
How powerful are we going to let the administrative state get? President Trump is trying to get things back under control with his moves to cut regulation, but that’s one President. What about the future?
As with the War Powers, we have strayed from Constitution, the Founders’ design, and made a clear situation unclear. We should think twice before straying from the Founders’ design again. Maybe they knew a thing or two.
* The director of the CFPB resigned, after naming a new deputy director. The intent was for the deputy director to become the acting director under the Dodd-Frank statute. But President Trump named OMB chief Mick Mulvaney as acting director under the federal Vacancies Reform Act, another statute. They both showed up to work claiming to be the acting director. The Justice Department and the CFPB’s own General Counsel agreed with Trump, but the deputy director filed a court case to block Trump’s move. She lost the first round when a federal judge refused to block Trump’s move by way of temporary restraining order. So Mulvaney is in charge of the CFPB at this writing, but the deputy director indicated in a court filing she plans to seek a preliminary injunction.
** D.C. Circuit Court of Appeals Docket # 15-1177 - PHH Corporation, et al v. CFPB