Thursday, December 01, 2005
I have mixed feelings about a federal judge banning Jesus from the statehouse. The decision seems to be in line with a supreme court ruling, so that's good. It raises issues of federalism and separation of powers. It's perplexing that the ICLU felt it needed to involve the federal courts - are the legislature's own processes, and Indiana's own courts, so broken? They may well be. I've had no success at litigating constitutional issues in Indiana's courts, either under the state or federal constitution. Well, that an overstatement - I did get a series of environmental cases dropped by insisting on my right to a jury trial.
The Indiana constitution is much stronger than the federal constitution about separating church and state. But there's not much of any mechanism to enforce the state constitution. Officials take, and then ignore, an oath to uphold it. The attorney general spends tax dollars to attack the state constitution, representing the legislature each time unconstitutional statutes are challenged. There is no private attorney general provision to fund constitutional litigation - the usual way to go about this is to find a federal claim to piggyback a 1983 action onto. But if you have a federal claim anyway, you also have access to the federal courts, and the ICLU, which has more experience winning these cases, finds that a less hostile forum.
Howard collects some coverage.
The Indiana constitution is much stronger than the federal constitution about separating church and state. But there's not much of any mechanism to enforce the state constitution. Officials take, and then ignore, an oath to uphold it. The attorney general spends tax dollars to attack the state constitution, representing the legislature each time unconstitutional statutes are challenged. There is no private attorney general provision to fund constitutional litigation - the usual way to go about this is to find a federal claim to piggyback a 1983 action onto. But if you have a federal claim anyway, you also have access to the federal courts, and the ICLU, which has more experience winning these cases, finds that a less hostile forum.
Howard collects some coverage.
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