Manchester POW Bible Case Proceeds, but Standing Questioned

Yesterday, the Federal District Court in New Hampshire allowed the lawsuit against the VA Medical Center POW/MIA display to proceed, and it also permitted the Northwest POW/MIA Network, which erected the display, to intervene. (The POW/MIA Network is represented by First Liberty.) In one of the more interesting arguments, the presiding judge questioned whether the plaintiff had standing because he’s a Christian. Judge Paul Barbadoro [emphasis added]

acknowledged no shortage of case law and legal precedent regarding religious symbols on public property…

But Barrington resident James Chamberlain, the plaintiff in the challenge, is a Christian who attends a Congregational church, and therein lies the rub, according to the judge.

Barbadoro said he knows of no prior case stemming from a Christian challenging a symbol of Christianity.

“If he were an atheist, he would have standing and that would be clear,” the judge said.

There are certainly legal reasons to require “standing” in a judicial proceeding — but one’s religion should not be relevant. Rather than highlight the ‘rub’ of Chamberlain being a Christian, what Barbadoro did was highlight the fact people are granted automatic standing in religious liberty cases if they’re of any other (read: non-Christian) faith system. In other words, if you’re not a Christian, you’ve got standing to sue over any cross, Christmas tree, or Bible in public in America.

That’s not how that’s supposed to work. Standing requires injury, not mere offense, and certainly not mere differing ideology. In fact, should this case manage to work its way to the Supreme Court, everyone already knows two Justices will reject it on the basis of standing. That’s the principle Justice Neil Gorsuch, joined by Justice Clarence Thomas, cited in the Bladensburg cross case when he noted the “offended observer” theory of standing “has no basis in law.”

In a roundabout way, this case may speak to that very issue [emphasis added]:

The judge told Manchester lawyer Lawrence Vogelman that he will have to demonstrate how Chamberlain has been injured in some way by the presence of the Bible. Barbadoro said that injury must go beyond the simple notion that Chamberlain worries non-Christian veterans might take offense or that it is a constitutional violation.

So worrying that others might be offended is insufficient for standing, but being offended is sufficient for standing?

That said, Chamberlain’s lawyer, Lawrence Vogelman, has already said he “seriously believes” the display of the Bible is wrong, which he would claim is standing ipso facto. Vogelman — who is working the case for free — also said they’d try to find a non-Christian plaintiff to mitigate that issue.

But it doesn’t eliminate the issue — rather, it has highlighted how ridiculous it is. Chamberlain has no standing because he has no injury.  No one is injured by the Bible sitting on a table.  Instead, it’s an effort to censor something they find objectionable.  The US system of government has means to affect those grievances, if that’s what you want to do — but it isn’t the court system, and it absolutely is not the US Constitution.

To the table itself, Mike Berry of First Liberty, which now represents a party to the suit (while Mikey Weinstein does not, despite his seeming claims of ownership), noted it’s the POW/MIA Network’s display, and the government needs to leave it alone. [emphasis added]

This display belongs to our clients, the Northwest POW/MIA Network’s display. It’s not the VA’s display, it’s not the government’s display,” he said. Any other organization could put up a display with a different symbol, Berry said

Did you get that second part? That’s the other problem the Plaintiff has. Why don’t they put up their own POW/MIA table without a Bible? Problem solved — or, more accurately, ‘injury redressed.’

Vogelman wasn’t having any of it:

Vogelman said First Liberty doesn’t understand the law… “They’ve chosen to involve the government, and there’s all kinds of case law about what kind of restriction that entails,” he said.

To a certain point, Vogelman is right: the fact the VA authorized the POW/MIA Network to place the Table there did “involve” the government — but only in a benign, secular, administrative way, the same way it deals with everyone else. Besides, in all that case law Vogelman vaguely references, how many times did the government deface a display to redress the injury? (It has occasionally happened, even recently — though those decisions were made before the courts were involved.) For example, how many Christmas trees had mandated ornaments? How many Nativity scenes were required to make Joseph’s staff a Festivus Pole?

Clearly, there were times the government said other displays had to be allowed — but that’s already a path even First Liberty has offered. But how often has the government required the core elements of a display to be changed?

The offense of Chamberlain and those like him, including Vogelman and Weinstein, goes beyond the Bible, as their lawyer even publicly admitted [emphasis added]:

Broadly, it’s an important issue because there has been a systematic attempt in the last number of years to Christianize the military and the VA.

And… the tinfoil hats come out (again).

If putting a Bible on a table in the foyer “Christianizes” the VA, missionaries and evangelists have been doing it wrong for centuries.

In truth, Vogelman just confessed to their true motivations. It isn’t Chamberlain’s “injury” — it neither picks his pocket nor breaks his leg for that Bible to be sitting on that table.  Rather, it’s their bigoted view of Christianity and the military, and what they want the government to do about it.

In that case, no redress will satisfy them — except that which Mikey Weinstein demands, and the government cannot do, at least, not under the Constitution. (Recall that when asked what constituted success for his vendetta, Weinstein once suggested Christians should have their heads cut off…)

On a final note, Vogelman also let slip another detail (apparently, he likes a good story):

Vogelman said the head of the foundation, Mikey Weinstein, is currently under around-the-clock FBI protection because of death threats.

Right.  That wording is just vague enough to be meaningless.  For all we know, Weinstein is under the same “around-the-clock” protection every US citizen is: He can call the same phone numbers anyone else can.

If the FBI even provided “protection” services, Mikey Weinstein is just not that important (though his ego truly knows no bounds).  Besides, we all know that if it were true, Weinstein — who can’t resist a good “I’m being repressed” story — would have added that to his repertoire long ago.

Also at the Stars and Stripes.