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Using a Church as a Polling Place Not an "Excessive Entanglement"?

Even when I strongly disagree with a judicial opinion, I rarely wonder, “What were they thinking?” Judges are rarely if ever as duplicitous — or as dumb — as politicians so often are in explaining their positions.

Having said that, what was he thinking?

Using a Catholic church as a polling place does not violate the Constitution, even if voters are told to cast their ballots in a room containing crucifixes and other religious icons, a federal judge in Florida ruled.

Judge [Donald] Middlebrooks said no reasonable person would conclude that the county was endorsing Catholicism or any religious symbols found in the church. He said the fact that Mr. Rabinowitz or others were offended did not amount to a constitutional violation. “An individual’s subjective feeling is not dispositive,” the judge wrote.

Perhaps, but that’s not the point. The point is: How could any reasonable person not conclude that conducting the most basic — the most sacred? — government function, an election, in a house of worship violates the First Amendment? It boggles the mind.

To approach the question more rigorously, Judge Middlebrooks totally (so totally in fact that one could suspect his sincerity) misapplies one prong of the Establishment Clause test laid out in Lemon v. Kurtzman, 403 U.S. 602 (1971):

The Lemon test requires that the challenged practice have a valid secular purpose, not have the effect of advancing or inhibiting religion, and not foster excessive government entanglement with religion.

At issue is of course the third prong, “excessive entanglement” —

There is absolutely no evidence here to support a claim of excessive entanglement. None of the Defendant’s employees at the Church participated in or monitored any religious activity, nor is there even an allegation that they supported any of the Church’s religious icons or messages.

This is, of course, utter nonsense. It is flunk-the-final wrong.

The “entanglement” derives not from what “religious icons or messages” election staffers may or may not have supported. The Board of Elections is conducting the most solemn government function, enacting the most basic civil right of a citizen, in a house of worship. The very act is itself the entanglement. It is self-apparent and self-defining. What part of this is unclear?

As for “excessive,” the analysis in this instance ought to be: Was there no alternative, strictly secular location in which to site the polling place? No school, no library, no civil hall? No other public location (or secular private location, for that matter), anywhere in this patch of West Palm Beach (hardly a sparse locale) that could have housed some voting booths and desks?

Elsewhere in the First Amendment (i.e., freedom of speech), government incursion of rights must be limited to the least restrictive alternative. This Establishment Clause “entanglement” question should face the same test: Only if the government can demonstrate, by clear and convincing evidence, that no reasonable alternative location exists should it then be allowed, strictly as a last resort, to use a house of worship. (Cf., Justice Kennedy’s concurrence in the recent race-based school assignment cases: Only when all other attempts to benignly foster desegregation have been attempted should government consider race-based enrollments.)

Incidentally, the opinion indicates that houses of worship serving as polling places are paid rent by the Board of Elections (i.e., by voters and taxpayers). Are we at “entanglement” yet? The Supervisor of Elections is given discretion to select polling places — and has used/abused that discretion to select, according to the opinion, approximately 100 houses of worship (in just one county!) — are we at “excessive” yet? What exactly would Judge Middlebrooks need to see before he considered the situation an “excessive entanglement”?

Or, rephrasing the questions: What was he thinking?

The case is Rabinowitz v. Anderson, No. 06-81117 CIV (S.D. Fl., July 31, 2007) (PDF – 15 pages). Via Religion Clause and How Appealing.

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7 Responses to “Using a Church as a Polling Place Not an "Excessive Entanglement"?”

  1. I live in a quite well-off suburban county, with no shortage of city halls, community centers, schools[1], county offices and courthouses, yet I've had to vote in a church several times in the last 6 or 7 years. I've also voted in a building in a hospital complex, my city hall, and the clubhouse of a nearby townhome community.

    I seem to be the only one of the people that I know that has a problem with it (voting in the church, I mean). I could almost, almost understand it if I were in a town out in western Kansas where my closest neighbor is 5 miles away. But my county has over half a million people and many public buildings. I can't think of a legitimate reason of why anybody in my area would have to vote in a church.

    [1]Although, in a post-Columbine and post-9/11 world, you can never be too careful; inviting a precinct's worth of strangers into an in-session school is asking for a massacre. You don't want the terrorists and goth kids to win, do you? Won't somebody please think of the children?

  2. I don't see the big deal.

  3. I agree with your analysis and add -

    the judge seemed to say voting in a church is never going to be a constitutional breach until we find one in which the Supervisor of Election himself has placed the icons which are objectionable to the voters exposed to them. Maybe the church the Supervisor attends?

    That is the worst Lemon analysis I've ever seen. It is something a person who believed in the literal truth of the bible might say. Not a federal district judge.

  4. I don't see the big deal either. "voting at a church" is a little ambiguous, too. People are actually walking down the aisle, onto the sanctuary past the altar and voting in a machine next to a tabernacle with statues of Jesus and Francis of Assisi staring down at them? Never. They are probably (most likely) voting in a parish hall or gymnasium that actually lend themselves to a public gathering. No big deal in my mind, unless you are the type of person who spontaneously combusts at the sight of a picture of Pope John XXIII. I don't see the entanglement from my vantage point either; it is an arm's length transaction leasing the space.

  5. One wonders if the bureaucrats shifting the elections to their own parishes would be averse to holding an election in a Satanic church, with flaming skull icons and upside-down crucified dogs affixed on the walls behind the polling booths.

  6. One wonders if the bureaucrats shifting the elections to their own parishes would be averse to holding an election in a Satanic church, with flaming skull icons and upside-down crucified dogs affixed on the walls behind the polling booths.

    …Oh brother.

    The people probably didn't walk past the more overt sacramentals and symbols where they voted. It wasn't on the altar. No Catholic church would go for that. Most of these things are canards, because the polling place is in a hall or gym, not the actual sanctuary altar. We are talking about different buiuldings. Rabinowitz probably walked past a more trophy cases with black and white photos of the 66-67 CYO basketball champions and macaroni art than crucifixes.

    The sparse news stories say guy saw a crucifix and a poster encouraging people to get right with God.

    There goes civilization as we know it.

    In my town, general elections occur in multiple polling places, such as firehouses. However, school elections occur only at the high school. If the high school is unavailable for some reason (in the 80's, for instance, there was a major construction project and that was a problem), the only logical downtown location is the Catholic school 2 blocks away. It is the only place that can accommodate the parking, etc.

    It's not a big deal, unless you presuppose that religion is inherently bad and we need to be shielded from it, which is preposterous.

  7. there were multiple crucifixes directly above the voting booths,multiple ten commandments, abortion banner, multiple posters of the 12 stations of the cross, multiple lord's prayer posters, etc.. don't you people seek the facts before judgement. it was held in a religious classroom not a gym or function hall.

    by the judges decision we can now vote in a confessional as long as the supervisor of elections did not place it there. the church was allowed thier freedom of expression while denying

    the freedom of others. it was overt sacramentals and symbols that were directly in line with the voting booths. check the facts, there are the evidence photos on the web if you take the time to understand the reality and then form opinions.

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