Commentary: Constitution more than a mere technicality

Daily Record (Rochester, NY), Mar 26, 2008 by Scott Forsyth

The other day a colleague told me about a T-shirt reading, "The Constitution is just a technicality."

My first reaction was to laugh -- the kind of laugh one utters in cynical agreement.

Yet, a review of recent civil rights cases shows there are people who must believe the U.S. Constitution does not apply to them, especially when it comes to the First and Fourth Amendments. Consider the following four cases.

Separation of church and state

This principle has been hammered into every American since childhood. Yet, in the 21st century, federal injunctions are still needed to prevent state taxes from being used to fund preferred churches. See, e.g., ACLU of Louisiana v. Blanco, CV 07-04090 (E.D. La. Oct. 5, 2007).

In this case, the Louisiana Legislature earmarked $100,000 to the Stonewall Baptist Church and $20,000 to the Shreveport Christian Church. Incredibly, the bill authorizing the earmarks didn't identify a secular purpose for the direct payments, did not put any restrictions on the money's use and did not require the churches to account to the state.

Churches may receive public funds for secular purposes without violating the Religious Liberty Clause. What Louisiana did went far outside what the law permits. Consequently, it was a no-brainer for the court to strike the earmarks down.

Not in my school

Earlier this month a Texas school board agreed to stop offering an elective course entitled "The Bible in History and Literature," Moreno v. Ector County Independent School Board of Trustees, MO-07- CV 039 (W.D. Tex. 2007). The course was taught in two schools, the legendary Permian and Odessa high schools.

A controversial group known as the National Council on Bible Curriculum in Public Schools developed the course and persuaded the school board to adopt it. It uses the King James Version of the Bible, which many religions, Christian and non-Christian, do not accept.

A course about the Bible may withstand constitutional scrutiny if the curriculum treats the Bible objectively within a historical or literary context. In this case, the plaintiffs alleged the course did just the opposite, namely it promoted religion. Worse, as the choice of the Bible illustrated, it promoted particular religions to the exclusion of others. In light of this settlement, perhaps the National Council should think about adding a Constitutional Law component to its curriculum.

Hut, hut, hut

Apparently New Mexico State football coach Hal Mumme was absent on the days his civics teachers discussed the flight of our forefathers to unknown lands to escape religious persecution.

Mumme's Muslim players sued him in 2006 for religious discrimination, alleging he and his staff went out of their way to marginalize the players' religion, emphasizing prayer and Christian beliefs, displaying indifference toward the players' dietary restrictions and disciplining them more harshly than other players for lesser infractions. The players settled last year for an undisclosed amount, Mu'ammar Ali v. Mumme, CV 06-794 (D. N.M. 2006).

Road trip

Last summer in Brendlin v. California, 551 US __ (2007) the U.S. Supreme Court held that the Fourth Amendment protects passengers in cars from unlawful stops as much as it protects drivers.

Brendlin was the passenger in a vehicle stopped on a pretext (key fact). The police officer making the stop initially questioned the driver, then turned his attention to Brendlin, whom he discovered was wanted on a warrant. The officer called for backup and, when it arrived, he ordered Brendlin out of the vehicle at gunpoint and declared him under arrest.

Performing a "search incident to the arrest," the police found a syringe cap on Brendlin's person as well as found paraphernalia commonly associated with methamphetamine production inside the car.

Police charged Brendlin with a drug crime. He challenged the search and the arrest on the grounds that the original stop was unlawful. The state conceded that the police officer did not have any legitimate reason for pulling over the vehicle. Nevertheless, it argued that, as a passenger, Brendlin could not raise this defense. Three cheers for the high court holding otherwise.

Certainly, interpretation of the U.S. Constitution always is in debate but, with respect to the cases mentioned, one can't help but wonder how the cases came to fruition in the first place. Thankfully, there are citizens who continue to fight to uphold the Bill of Rights our forefathers left us.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com