Advice from a Flounder

The Cranston prayer banner case has descended from low comedy to outright farce, with a group of Cranston citizens filing a brief to intervene in the case after it had already been decided. For those who aren’t familiar with the case, or maybe don’t remember it (the internet seems to have shortened people’s memories further than ever) let me observe that the city of Cranston, Rhode Island, erected an illegal prayer banner in a local high school half a century ago, and then had the gall to argue that it should be kept up because it had been hanging there (illegally) for a half century. The court ordered them to take it down.

Well now a group of Cranston citizens—the names of these jackasses are Michael Motaranni, Christian Frangos, Olivia Frangos, Carolyn Mesagno, Lori McClain, Jared McMullen and Ronald L’Heureux—are trying to argue that “compelling and dispositive arguments were presented to the Cranston School Committee at the public hearings that were not included in Defendants’ briefs to this Court. Movants believe that these arguments, if considered by this Court, would have resulted in a different ruling.” The judge tersely added, “They are wrong.” Relying on “the Aitken act of 1872 authorizing the use of bibles in all schools in America” Michael Motaranni and his associates argued that virtually every school prayer case has been wrongly decided at least since 1947.

There is an obvious problem with this—several of them, actually. First there is a category error involved here—“authorizing the use of bibles in all schools in America” is not the same thing as authorizing prayer. The bible is a religious text—or rather a collection of religious (and secular) texts held to be sacred by a variety of religious groups. The bible can, in fact, be used in government schools today, as a historic or literary document. Use of the bible in school is not necessarily endorsing one particular religious viewpoint over another.

Prayer, on the other hand, is a religious exercise. There is no such thing as a secular prayer. Any school-sponsored prayer crosses the line that separates spiritual and temporal affairs. Even if “the Aitken act of 1872 authorizing the use of bibles in all schools in America” were in force, it would not be relevant to the issue at hand—state-sponsored prayer.

But where on earth did this crackerjack legal team get the impression that there was an “Aitken act of 1872 authorizing the use of bibles in all schools in America”? What was their source for this erroneous belief? This is what cracks me up about this—this notion goes back to the anonymous internet document sometimes called “History Forgotten” or “Forsaken Roots”. Its author, apparently remembering in a vague and confused way the story of the Aitken Bible, claimed that Congress passed this resolution in 1782:

The Congress of the United States recommends and approves the Holy Bible for use in all schools.

Now when Robert Aitken printed the King James Bible in America for the first time (until the revolution printing it was a Crown monopoly) Congress did in fact pass a resolution approving it and recommending it “to the inhabitants of the United States”. It also authorized him to publicize its recommendation “in the manner he shall think proper.” It did not however authorize “the use of the bible in all schools in America”. That was an error made by the anonymous author of “Forsaken Roots”. He probably had in mind Aitken’s own description of his bible being “for use in schools.” Congress at no time echoed this language, however.

Please note, this is one step lower than relying on the likes of David Barton for ammunition; this is relying on an anonymous internet document, sans documentation, that mistakenly recycled bad Christian Nation arguments into an imaginary act of congress. Pathetic doesn’t begin to describe the case.

Redefining Marriage: Anyone Can Play

I don’t know how I stumbled onto this story out of Minnesota—I know somebody I read sent me there, but I can’t retrace my steps now—but a Federal judge there sent down this absolutely blistering opinion (Radtke v Local #638 Fund, PDF) against a union’s medical fund that decided on its own bizarre interpretation of state law that a man and his wife were not legally married. The Miscellaneous Drivers and Helpers Union Local #638 Health, Welfare, Eye and Dental Fund denied benefits to Christine Radtke, claiming that she was not legally Calvin Radtke’s spouse. In point of fact Calvin Radtke and his wife Christine were legally married under Minnesota law on 10 August 2005, as the fund in question was fully aware, as they were supplied with copies of the documents in question. But the fund decided that the marriage was not valid because Minnesota law explicitly rejects marriage “between persons of the same sex”. Apparently “Lawful marriage may be contracted only between persons of the opposite sex”.

So how on earth does this affect the Radtkes’ marriage? It is a matter of record that Calvin was recognized as male and Christine as female by the state of Minnesota at the time of their marriage. But the fund argued that as Christine was assigned male at the time of her birth, that should be the governing factor, and their marriage was therefore not valid under Minnesota law.

It was on this point that Judge Michael J. Davis waxed sarcastic, explaining the obvious as though trying to simplify matters so that a two-year-old could understand:

Minnesota’s requirements for the capacity to enter into a marriage contract, by their very nature, apply at the time the marriage is entered into. For example, both parties must have “attained the full age of 18 years.” Minn. Stat. § 517.02. Both parties must not be married to anyone else. Minn. Stat. § 517.03, subd. 1(a)(1). To apply these requirements as of some time other than the time of the marriage would be absurd—divorced individuals would be prohibited from marrying, and adults could not marry because they once were children. There is nothing in Minnesota law indicating that the opposite-sex requirement of § 517.01 should be treated differently from the other capacity requirements. Therefore, the opposite-sex requirement must be determined as of the time of the marriage, rather than as of the time of the participants’ births.

For reasons best known to themselves the Fund’s lawyers chose to drag in various irrelevancies concerning same-sex marriage—how it is seen by the Federal government and the state of Texas, for example. As the Radtkes were not claiming benefits on the basis of a “same-sex marriage” none of this had any conceivable relevance, as the Judge Davis correctly noted. The sole question at issue was whether the state of Minnesota recognized Christine Alisen Jensen as female at the time of her marriage—which it clearly did, as legal documents (including her amended birth certificate) showed, and her status as female was accepted by the IRS, the Minnesota Department of Public Safety, and the Social Security Administration.

The summary of the decision reads in part:

The Plan was unambiguously written to allow all persons who are legal spouses under Minnesota law to be eligible family dependents. The Fund’s role was to ascertain Minnesota law. It was not the Fund’s role to impose its own definitions of gender and marriage upon its participants. In this case, the Fund ignored all evidence of the State of Minnesota’s view of Plaintiff’s sex and marital status. The Fund’s decision was not only wrong, under a de novo review, it was a flagrant violation of its duty under any standard of review.

As if to make clear that their redefinition of marriage was not an honest misunderstanding of Minnesota law but only a cloak behind which they were hiding their prejudices, the union fund chose to rewrite its plan explicitly to exclude transgender spouses from all coverage:

[T]he Plan defines a spouse as a male or female member of a legally recognized marriage between a man and a woman. . . . For purposes of deciding whether a marriage is between a man and a woman, in all cases, the Board will only recognize the anatomical sex of the individual at the time of birth.

Nothing like an honest bigot, I guess. George Wallace would be proud.