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?
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