The Steady Slide Toward Theocracy in the United States

Although nothing coming out of this Supreme Court should really surprise me anymore, the shear chutzpah of the reactionary justices on the Court is sometimes shocking.

On April 4, 2011, the United States Supreme Court, in a five to four decision typical of the divide between Justices who respect the Constitution and Justices who don't, refused to hear a petition by Arizona taxpayers who claimed that the state had unconstitutionally subsidized religion through its tax system. Since the inception of the plan in question, the cost to Arizona's citizens has been nearly $350,000,000.00 in diverted tax revenue. The majority opinion by Justice Kennedy said that taxpayers lacked standing because the funding of religion they challenge comes from a tax credit, rather than from a tax appropriation.

In the case of Arizona Christian School Tuition Organization v. Winn, the taxpayers complained in the District Court of Arizona that Section 43-1089 of the Arizona Code violated the establishment clause of the First Amendment to the Bill of Rights of the Constitution as made referable to the states by the Fourteenth Amendment to the Constitution. As readers may or may not be aware, the First Amendment to the Constitution is the first of the original "Bill of Rights" which softened the Constitution enough to allow for a balancing between the interests of states versus the federal government, and the balancing of interests between any government, whether it be state or federal, on the one hand, and the rights of individuals on the other. These fundamental liberties guaranteed by the Bill of Rights are so entirely fundamental that it's hard to imagine how the Constitution could even have been contemplated without their inclusion, yet the debate over whether or not to include them at all was bitter and created quite the divide.
The Arizona act allowed Arizona taxpayers to obtain a dollar for dollar credit of up to $500.00 per person for contributions to school tuition organizations that use what would otherwise be state income tax revenues to pay tuition for students at private schools. Of course, some of these schools discriminated on the basis of religion in selecting students. To put it bluntly, some of these schools are religiously governed, teach religiously, and teach, often, a biased view of others possessed by the religion governing the institution in question.

The fact that these schools discriminated inspired the suit. The District Court dismissed the suit as jurisdictionally barred by the Tax Injunction Act, a federal statute. The Court of Appeals reversed the District Court's decision and the United States Supreme Court agreed and affirmed in the case of Hibes v. Winn, in 2004.

On remand, the Arizona Christian School Tuition Organization and other interested parties intervened. The District Court once more dismissed the suit, this time for failure to state a claim. Once again, the Court of Appeals reversed. It held that respondents had standing to sue under a case called Flast v. Cohen, from 1968, and that the respondents had stated a claim that the Arizona statute violated the establishment clause of the United States Constitution.

The Court granted "certiorari," which essentially means the right to put the dispute before it, and found that the respondents had no standing under Flast because Arizona had made no "appropriation" of funds.

In essence, what the Court was arguing was that since the Arizona government had not affirmatively undertaken itself to set aside the finds, it had not, in essence, "acted." The fact that it was allowing citizens to act nonetheless with the government's imprimatur, however, should have meant the same logical thing. How the tax money is diverted shouldn't matter; that it's being diverted for the benefit of religion is what matters. It's obvious, and, no doubt, was obvious to the reactionary judges who pretended not to see it.

Justice Scalia, joined by Justice Thomas, said that taxpayers ordinarily do not have standing to challenge federal or state expenditures that allegedly violate the Constitution. They acknowledged that the Flast case created an exception for taxpayers raising establishment clause challenges - religious challenges - to government expenditures. They also said the majority would "repudiate," or invalidate if it could, the "misguided decision," referring to Flast, which, of course, allows taxpayers to challenge religious spending.

Yes, you read that right. They don't want citizens to question tax actions by the government which suggest the government is violating the anti-establishment clause of our Constitution. If that frightens you, it should. It's nothing less than an attempt to establish religion in government after all. It's theocratic fascism, and it's coming.

Justice Kagan in his dissent said that cash grants and targeted tax breaks are means of accomplishing the same governmental objective: to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from one form of subsidy or from another. Either way, "The government has financed the religious activity" and so either way, Justice Kagan said, "taxpayers should be able to challenge the subsidy."

If I am in care of a toddler and I push the toddler in front of a moving train, I've committed murder. No less have I committed murder, however, if all I do is allow the toddler to enter the train tracks of his own accord, fully aware that the train is coming. That is how clear the meaningless distinction between an affirmative "appropriation," on the one hand, and a passive "voluntary" diversion, on the other, is.

When the day comes that America ceases to be what it is and becomes just another thuggish theocracy where one dominant religion imposes it's power on everyone else, where individual freedom is a memory, when oppression and suppression of political religious and minority opinion is no longer the exception but the rule, when searches and seizures without constitutional protection predominate, and when law enforcement and military authorities are forgiven any sin in the cause of "security," we'll have no one to blame but ourselves.

This is why judicial appointments by presidents are so important. Once a Supreme Court Justice is appointed, they can either do tremendous damage for their entire career, or do tremendous justice. The Court is presently doing tremendous damage in support of corporations, banking interests, insurance interest, overzealous law enforcement and now, establishment of religion.

At this civil rights law firm, we decry this decision and hope that something of this blog has sunk in when it comes time to cast your next presidential vote. You are not just voting for a president you are voting for your posterity's legal future. You're voting to protect what it means to be an American.

Partner Kevin M. Costello Appointed by Chief Justice Rabner to the Supreme Court Committee on the Unauthorized Practice of Law

Kevin will serve a two year term subject to re-appointment. "I appreciate the Chief Justice's order appointing me," Kevin says. "The chance to give back to the people of New Jersey by protecting them from sometimes fraudulent offers of spurious legal services is important to me. The law is the bulwark of our democracy, and the integrity of the profession, and the right of New Jersey's citizens to honorable and qualified representation, is something I consider it an honor to protect."

Costello & Mains Adds Associate Toni Telles to the Firm

The partners of the firm are pleased to announce that, effective February 28, 2011, associate attorney Toni Telles, Esq., will be joining the firm, concentrating her practice exclusively in the area of employment and civil rights law. "We're very happy to welcome Toni," says partner Deborah Mains. "Her commitment to civil rights and to protecting against government and corporate abuse is clear from her experience, which includes past affiliation with other firms doing that work, but which also includes her community activism and professional activities. She's the founding chair of the Rutgers Law School Chapter of the National Lawyers' Guild, a progressive civil rights attorney organization, and we're proud of her clear commitment to the mission of this firm."

Honorable Republican Against Tort Reform

Some of you may know the name Fred Thompson, the actor turned Republican senator from the state of Tennessee. I've never known too much about his personal politics, because I've never made it my business to know much about Tennessee and, admittedly, as a Progressive, I tend to make assumptions about Republicans which, I suppose (infrequently), I place upon them the burden to disprove. Fred Thompson, at least in the area of 'tort reform,' which thinking lawyers call 'tort de-form,' seems to have said the right things and has actually taken what I consider to be a principled stance against the misinformation and scare tactics to which the right and its allies are so frequently prone to resort.

In the online periodical The Tennessean, which I admit I don't know much about (so I don't know whether or not it's the online version of the print periodical or purely online), Senator Thompson said some interesting things about Tennessee's civil jury system, which, like those of so many states, is under attack by right wing interests seeking to limit access to courts for people and to limit and 'cap' recoveries in an effort to protect the corporate and other wrong-doers of this nation.

I've often mentioned in my other blogs that I consider the corporate and right wing 'conservative' assault on civil justice - which, in truth, basically means an assault on the scale and nature of remedies that individuals can obtain against vested interests like corporations - to be nothing more than a cynical and dishonest attempt to brainwash the American people into gladly giving up their civil rights when corporations not only don't give up rights, but also obtain more and more of them every day.

The concept of the jury is centuries older than America and is at the core of a functioning, capable democracy with a judiciary capable as standing independently as one of the three branches of government. Only through the power of a jury of regular citizens can the vested interests of government, corporations, banks, insurance companies and powerful lobbies be kept somewhat in check. Are juries tampered with? Yes. Are juries sometimes plain wrong one way or the other? Absolutely, but juries mostly get things mostly right most of the time, and given that we're not yet at a point where we can have computerized juries and we haven't quite found the planet Vulcan, our fellow American citizens are all we have.

The fact that most juries get it right most of the time irks the right more than anything. Corporations don't like having to surrender their power to juries. That's why arbitration, which is neither 'fair' nor 'inexpensive,' but which is billed to be both by the right wing, is so popular these days. Unfortunately, most American citizens are so personally consumed with distractions, economic worry, war worries, health concerns and the like, and some of them are so philosophically and ideologically wed to the right wing and its pundits, that they simply can't conceive that the right wing may not have their best interests at heart after all.

I have to admit that, even though I liked his performance in The Hunt for Red October and in a few other movies, I never assumed Fred Thompson was a principled man when it came to most issues that Progressives feel are important because he was a Republican. I'm prepared to admit that I was wrong. Fred Thompson did what appears to be an op-ed piece in The Tennessean and said some things about the jury system that, coming from a Republican, I think will even more sway, and ought to induce more thoughtful consideration in, everyone who reads this than would usually be the case.

I thought about putting only the 'pertinent' parts of his comments into this blog for length's sake, but, honestly, I liked everything he had to say, so here it is in full:

I have been asked why I want to take part in the discussions when the state legislature considers changes to our civil justice system in Tennessee. I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to "tort reform."

Republicans and conservatives are supposed to be for anything called tort reform. However, I've never subscribed to these boxes. Not when I was in the U.S. Senate faced with these issues, and not now.

Some argue that the legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants - regardless of the facts and circumstances of the case. I don't agree with this approach, and I don't think it's "conservative."

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.

Our system "ain't broke." It is based upon tradition and common law and has provided justice to individuals and businesses alike.

The legislature has made adjustments to our tort law from time to time. For example, in 2008 a law was passed requiring plaintiffs to get a written statement from a medical professional saying that the lawsuit had merit, thereby reducing medical-malpractice suits. This was reasonable and appropriate. However, never has the legislature imposed a dollar limit in cases where damages and negligence have already been proven.

I recognize that several other states have imposed such rules. It's understandable. The pressure to do so is very strong. That does not make it right or sound policy. Tennessee does not make a habit of simply following a path that has been cut by others. Forty-one states have a broad-based income tax, and I am proud to say that Tennessee does not, and I believe it is much the better for it.

No system ever devised by man is or can ever be perfect. But our civil justice system has served us well, and any substantial changes to it should be made only if the change is needed, fair and beneficial to all Tennesseans. I hope that I can be helpful in discussions that we will soon be having on these important issues.

Were Senator Thompson still in office, I doubt that he would have written this. That having been said, he's a considered 'conservative' in the true mold of that word. It's an interesting debate and one that I won't strain the length of this blog to discuss, what it means to be 'conservative.' Mostly, the people that call themselves 'conservatives' are, in fact, the worst kind of anti-progressive reactionaries, willing to change anything if it means changing it for the benefit of the religious/banking/insurance/medical/corporate lobby. They are simply foolish, misguided and ignorant people who have come to believe that anything that is said about law, society, culture or politics is not to be trusted unless it comes from Sarah Palin, Ann Coulter, Rush Limbaugh, Bill O'Reilly, Sean Hannity, etc. They don't think for themselves anymore, because they've surrendered their judgment to those who think for them. They are not conservatives any more than I'm a communist because I believe in socialized medicine.

Anything which takes away a trial by jury or limits the power of a jury is bad for society. I'm not saying this because I'm a lawyer and I practice in front of juries and depend upon them to make awards to my clients so that I may make a living. Doctors ask for money before they heal, because they need to make a living, too. So do nurses. Even clergy need to make a living, so let's stop suggesting that anyone who needs to make a living isn't to be trusted when they have a valid opinion about the law or our society.

I believe in justice for all. I believe in the American ideal. I believe that average citizens, especially in a group, can do the right thing so often (though not all the time) that there's no better option out there. In fact, any other option is a step toward the sort of fascist state that we've gone to war against more than once and that we ought to strive never to become.

I am glad that there are principled Republicans who speak these words because I'm hoping that someone will listen to them. I just hope that enough people, perhaps even enough conservatives, one day realize that they're being led down the primrose path of war, corporate fascism and 'anti-progressiveness.' America works best when it's an even playing field and when everyone has the same rights.

Thank you, Senator Thompson. I was wrong about you, and I'm glad to admit it.

Kevin M. Costello Named to The American Trial Lawyers' Association "Top 100 Trial Lawyers" for 2010

"I never throw my hat into the ring for things like this," Kevin says, "so I guess I'm always a little surprised when things like this happen, such as when I first made the "Super Lawyer" list a number of years ago."

"The ATLA" is a national trial lawyer group which names the top 100 trial lawyers in each state, each year. This year, though the selection process details are unknown - indeed, Kevin doesn't know how he became eligible for consideration - he made the list.

"I appreciate that I was named," Kevin says, and promises to uphold the commitment to justice and solid court room advocacy which he hopes formed the basis for the distinction.

Costello & Mains Partners Speak at New Jersey Association for Justice's Meadowlands Seminar

Costello & Mains partners Deborah Mains and Kevin Costello served as faculty for the Employment Program of the New Jersey Association for Justice's 'Meadowlands' CLE event, attended by a record number of attendees for 2010, which included record attendance at the Employment program.

"It was a huge success," partner Deborah Mains says. "All the feedback we're getting has been very positive. It's always a pleasure and honor to share knowledge with fellow employment and civil rights lawyers, since we always feel we teach and learn at the same time. We had great speakers."

California Elects its First Transgendered Judge

I'm not much for talking about what other states do, because I'm a New Jersey practitioner and because I, for the most part, work with New Jersey laws. But when something happens that affects what I do even indirectly, from across the country, I think it's pretty noteworthy.

It's no secret that I'm a progressive and forward thinking person who believes that change is the essential essence of life. As a science-minded person, I know that every physicist, chemist and biologist will tell you that it is an axiom for their fields of endeavor that change is the absolute and unalterable state of the universe. Nothing ever stays the same. Things always move forward. Since there is no ability to move backward because time only flows in one direction, all change is forward and therefore, all change is progressive.

I don't mean this to sound like I'm founding a new religion. For me, it's all just basic common sense. In order to make things better, you have to move forward. Sometimes, people will get it wrong, but mostly, I think if everyone has an open heart and an open mind, change is a good thing.

Take California, for example, which just elected its first transgendered judge. On one level, that sounds momentous. It is momentous. Of course, it's sad why it's momentous, the answer of course being that there is a tremendous amount of prejudice against sexual minorities. Transgendered people, in turn, are often the red-headed stepchildren of the sexual minority community. As openly permissible as it is for the most bigoted conservatives to publicly lambast sexual minorities today, it is even more acceptable to do so with regard to transgendered people, because to the ignorant, uninformed and afraid, transgendered people are abominations, barely even human. So it is momentous that California, usually at the front of the march, has
finally broken another glass ceiling for sexual minorities.

Judge Victoria Kolakowski declared victory Monday night in a race for the Alameda County Superior Court, she having won by a fifty-one to forty-eight percent vote. Hardly a mandate, but then again, today, mandates are becoming increasingly rare.

Did some people vote for her because she is transgendered? Perhaps, though probably a minority. In fact, I'm sure that that minority percentage was probably matched by the number of people that voted against her for the same reason.

So yes, it's "momentous." On the other hand, why should it be so? Why couldn't people have simply looked at Judge Kolakowski's credentials, compared them favorably against her opponent's, and selected the best judicial candidate for the job? The belief that gives me hope is that, in all likelihood, most of the people who did the voting probably did just that, just as I'm sure that most of the people that voted in the last presidential election voted based on party affiliation, beliefs in certain policy positions, etc., rather than on the race of the candidates.

No doubt, there will be people, usually of an extreme religious or socially conservative bent, who feel that a transgendered person is, by her nature, deficient in some moral quality or some other character trait simply because she is a transgendered person. These are the people whose minds have to change, and if they can't change, then those attitudes need to die out. I'm actually hopeful that they will. The new generation that seems to be emerging is so technologically inclined, and so communicatively inclined, and so desperately dependent on the march of science forward to give them the gadgets and conveniences they so love, that I do believe there will come a day when religion worldwide will simply have to adapt itself to a more modern, gentle and non-judgmental progressive planetary culture. Is that an
article of faith for me? Almost certainly. I can't see the future. Then again, however, most successful bookies do make a living by predicting it. As a student of the law, and as a student of the culture in which I must serve the law, I keep a keen eye on these things. My vision is certainly lengthening (I just started using reading glasses for the first time), but from what I see, Judge Kolakowski's victory is the shape of things to come more than it's a shout in the darkness.

I applaud Judge Kolakowski and hope that she always, as all judges must, tempers justice with mercy, while protecting the vision of the law, rather than the letter of the law.

I also say to all people who feel as if they are, from time to time, a member of a minority (no matter what the nature of the minority), and all people who feel themselves to be "different" (because at some point, we all are), that, in America, it seems that anything is still possible if you want it badly enough and if you work hard enough.

Congratulations, Judge Kolakowski. I hope you're the first of more to come.

P.S. - After editing this Blog for posting, I learned that another Transgendered judge also took the bench in Texas...in TEXAS. Truly, there is hope for us all.

Happy Holidays.