MEMORIES

MEMORIES

It's Memorial Day, 2014.

Time to remember the vets.

Here's one I remember.

It was the summer of 1979.  I had just finished my first year of law school and had a summer internship working for the U.S. Attorney's office in Newark, New Jersey.  There were about twenty interns and we were each assigned to an Assistant U.S. Attorney (AUSA), one of the hundred or so line prosecutors in the office. 

I was assigned to AUSA Ted Lackland.

Columbia Law grad.  Ex-associate at a Wall Street law firm with a Masters in Philosophy from  Howard University. Grew  up in Chicago, where he went to college and married his girlfriend.  And . . .

Ex-Captain in the US Army, graduate of Ranger school, and Vietnam combat veteran.

I learned a lot that summer -- how to try a case, do an investigation, cross- examine a witness, joust with a judge and persuade a jury.  

But mostly, that summer, I learned a lot about the Vietnam War and about one guy who served there, came home, made a life and career for himself,  and . . .

Was never bitter.  

Even though he had a right to be.

The Vietnam War Ted Lackland described was not the one I had read about in the newspapers.  He had left for Southeast Asia  from Oakland on June 6, 1968, the day Bobby Kennedy died.  He told me he thought he might be going to a safer place given the turmoil and riots which by then had become that era's domestic imprint. He must have been quickly disabused of that notion once he arrived in South Vietnam, however, because he also told me he thought he was going to die there -- from the first day he arrived 'til the last day he left.

Which, for me, was lesson one in the life of a combat vet. 

You live in constant fear.  It's a mental tension that never goes away.  We all now know about post traumatic stress  disorder. This is pre-traumatic stress disorder.

When he got to Vietnam, Capt. Ted Lackland  was supposed to command a mechanized battalion, for which he had been trained. But there either weren't any there then, or weren't enough of them. So the higher-ups made him run an infantry battalion. They said he was a Ranger and that Rangers could do anything.  The fact that they said this tells you a lot about how bureaucracies cover their butts. 

The fact that Ted did it tells you a lot about him.

As the summer continued, so did my education.  The first thing Ted did when he got his battalion was blow up the liquor bunker.  In Vietnam, even if every day seemed to be your last, drunkeness did not increase the chance that you might be wrong and live to worry tomorrow.

The next thing he did was enforce order.  No back talk.  In fact, no conversation.  This was war, not a debating society, and survival, not feelings, was what counted.  He fined anyone who was not wearing their flak jacket properly.  The troops complained.  In Vietnam it was 120 F and humid on the best of days. "It's too hot to wear," one GI bitched about the flak jacket order. "It's supposed to be," remarked the Captain, "It stops bullets."

Others were fined for walking on the dykes in the rice paddies. The dykes were booby-trapped.  The  chest deep water in the paddies was  rat infested and snake riven.  But it wouldn't kill you.

Then there was the racism.  

Some guys were constantly drawing perimeter patrol duty, which materially increased the chances of coming home in a box. Lackland regularized that duty so that everyone had to take his turn.  One black private came up to him, their black Captain,  and said, "I know I'm gonna get fined for this, but I just wanted to tell you that the black guys in this outfit hate you.  Which is OK. 'Cause the white guys in this outfit hate you just as much."  Lackland looked at him and said, "You're right.  Fifty dollars."

When he collected the money, he sent it to the private's account.

Which is what he did with all the fines.

In June 1968, Gen. Creighton Abrams replaced Gen. Westmoreland as the head of the Military Assistance Command, Vietnam (MACV). Within the year, Abrams noticed this Captain from Chicago and asked him to make a career of the Army. Ted, however, had other plans.   They included law school and . . .

Dorothy.

Who he married soon after he returned.

After graduating from Columbia, Ted was an associate for three years at Dewey Ballantine Bushby Palmer & Wood.  (That's the old Dewey Ballantine of Gov. Dewey and, before him, Elihu Root, not the ad hoc version that greed recently ran into the ground.)  He then served as an Assistant US Attorney for three years before moving to Atlanta,  where he still practices law.   

There are lots of guys alive today because of Ted Lackland.

And at least one law student who learned about a lot more than law in the summer of '79.

Thanks, Ted.

IT'S ALL GREEK TO ME

IT'S ALL GREEK TO ME

The Supreme Court moved backwards this week.

In Town of Greece, New York v. Galloway, the Court upheld the practice of opening  monthly town board meetings with a prayer. 

The facts of the case were fairly breathtaking.  The town of Greece has monthly meetings of its town board. At those meetings, in the lingo of  lawyers, the board performs both "legislative" and "adjudicative" functions. In other words, the board debates and votes on ordinances that will govern the town as a whole, the so-called legislative function, and the board also entertains petitions and requests from attending citizens, e.g., requests for zoning variances, the so-called adjudicative function.

In 1999, Greece's newly elected town supervisor decided that town meetings should open with a prayer. And, from that point forward, they did.  The prayers, however, were offered exclusively by Christian ministers or Catholic priests.  These prelates would be invited to the rostrum adorned with the town seal in the center of the meeting room. They would then face the public and invite them to stand and pray.  

Between 1999 and 2010, there were roughly 130 invocations.  Of those, at least two thirds expressly invoked and praised two of the deistic giants of Christendom, Jesus and the Holy Spirit, seeking inspiration from the third person of the Trinity in the holy name of the second.  The other third were directed to the "God of all creation," the "Heavenly Father," or the "Kingdom of Heaven."  

After Susan Galloway complained and filed her lawsuit, the town had a Jewish layman do one prayer and the chairman of the local Baha'i temple another; a Wiccan priestess who read about the controversy in the press apparently volunteered to do so as well. None of this out-reach continued, however, and so the opening prayer reverted to its exclusively Christian messenger and its more or less predominantly Christian message.

This was an easy case.

The Establishment Clause of the First Amendment requires that government be strictly neutral when it comes to religion.  It can't favor one denomination over another;  it can't proselytize on behalf of one faith; and it cannot establish any one faith as the state religion. For years, there was an on-going dispute as to whether this ban on establishment, along with all the other requirements of the Bill of Rights,  actually applied to the individual state and local governments.  But this has pretty much been resolved in favor of the notion that it (and they) have been incorporated against the states via the due process clause of the Fourteenth Amendment. 

So, the reality here is that the town of Greece was pretty clearly violating the law .

It routinely sanctioned an explicitly Christian prayer in an environment where non-Christian citizen-participants could easily feel coerced into participation lest they alienate the very officials before whom they presumably had business.

But four justices on the Supreme Court -- Kennedy,  Scalia,  Alito, and Thomas -- and the Chief Justice -- Roberts -- did not see it that way.

Why?

There were four reasons given by the Justices themselves.  First, they claimed that the sanctioned practice of opening Congressional (or any of the various state legislative) sessions with prayers made it permissible in this case. Second, they asserted that any requirement that localities monitor the content of  prayers so as to make them, in effect, non-denominational, was itself constitutionally impermissible.  Third, they claimed that the locality in this case -- the town of Greece -- was not required to look outside its borders so as to expand the denominational list of religious who it could ask to conduct the prayer.  And finally, though the  incorporation debate ended long ago,  it is a testament to either Justice Thomas's independence or stubbornness that he thinks it hasn't.  In any case, he claimed that the Establishment Clause was not binding on the states and localities.

None of these ostensible justifications work.  In fact, they are so bad that they suggest something else is going on . . .

And that "else"  may be very disturbing.

The cases blessing opening prayers before Congress or state legislatures have been very clear in noting that the prayers in those instances were directed to (and offered for the benefit of) the lawmakers themselves, not the public.  They were offered on the floors of the various chambers, where the public was nowhere to be found,  and the lawmakers themselves were  performing legislative, not adjudicative, functions. Consequently, there was no risk in those cases that citizens would be coerced into religious participation simply to curry favor in a setting where they were actually asking for something from state or federal officials. In fact, where coercion was even remotely possible -- for example, at hearings where the public testifies -- no prayers were permitted. In contrast, of course,  the prayer in Town of Greece was directed to the public, some or all of whom had business before the town board.  

Over the years, Congressional prayer also has been  relatively non-denominational, especially in the last century, and in any case has been given by a multitude of religious.  Either of these approaches can help save prayer from constitutional death in a government proceeding because they each create the religious neutrality demanded by the Establishment Clause, the former through non-sectarian language and the latter by embracing a plurality of religious voices.  Moreover, the notion advanced by the Justices that officials can't insist on non-denominational prayer or, absent that, be inclusive in searching out a variety of prayer-givers, belies the actual facts.

Because precisely that has been going on all over the country . . .

All of  the time. 

Just not in Greece, NY.  

The mistakes made by the Court majority here were both pedestrian and somewhat juvenile.  Competent and seasoned appellate jurists do not ignore facts, especially where, as here, they all agree that the outcome is "fact sensitive." Nor do they claim to be adhering to settled precedents when the actual  facts render those precedents inapposite.  

But that is what happened here.   

The five who voted in favor of the town of Greece's prayer are all Catholics.  One of them, Justice Alito, berated the dissent as "really quite niggling" for insisting that a small town, if necessary, look outside its borders for religious from different denominations, effectively resting constitutionality on the ostensible good faith evidenced by restricting searches to the four corners of a jurisdictional midget.   To Alito, of course, there was no exclusion because his people made the cut.

But would he -- or any of the others in the majority -- have had the same view if the case involved a town whose geography resulted in a decades long parade of imams offering the opening prayer, and praising Allah, before the town board went to work?

Justice Holmes once said that hard cases make bad law.  

Nowadays . . .

So do easy ones.