Sunday, October 15, 2017

Federal judge declares higher power must be deity

By Mathew Goldstein

U.S. District Judge Rosemary Collyer recently ruled that the House chaplain’s refusal to allow an atheist to deliver the morning prayer complies with the Equal Protection Clause.

The dispute dates to February 2015, when Rep. Mark Pocan, a Wisconsin Democrat, invited one of his constituents, Dan Barker, to deliver the invocation as a Congressional guest. The office of Catholic House Chaplain Patrick Conroy informed Barker that all guest chaplains must be “ordained by a recognized body in the faith in which he/she practices” and must present a copy of their ordination certificate as proof. He also advised that the invocation must address a “higher power.”

Barker had retained his 1975 ordination as a means to officiate at weddings to bypass discriminatory laws that restrict marriage officiants to clergy. Barker submitted his ordination certificate to Conroy’s office. He said he believes there is no higher power than “we, the people of these United States.” Conroy did not respond for almost one year, until January 2016. He then informed Barker he was denying his request to give the invocation because he had publicly announced his atheism.  

Mr. Barker, the co-president of the Wisconsin-based Freedom From Religion Foundation, consulted a lawyer and sued the Chaplain, and Speaker Paul Ryan, in May 2016. He claimed his exercise of religion rights under the Religious Freedom Restoration Act were violated. Judge Collyer concluded this argument fails: "Taking as true Mr. Barker’s allegations that atheism is his religion and assuming, but not finding, that RFRA applies to the House, the court finds Mr. Barker has failed adequately to allege a claim under RFRA because he fails to allege a substantial burden". She went on to explain that a substantial burden “exists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’”  

Government authorities demand that Mr. Barker modify his belief based behavior as a condition for qualifying to participate in a government sponsored activity is a substantial demand. But the "pressure" was insubstantial in the sense that not participating in this activity is relatively easy, much easier than changing beliefs and related behaviors. This reflects the fact that the activity at issue, Congressional sponsored invocation, is itself unnecessary. Congress can perform all of its functions, and lawmakers can voluntarily pray before each session begins, without an opening prayer ritual or a paid chaplain.

Meanwhile, atheists lose an opportunity to gain publicity for themselves by giving any invocations. More significantly, and insidiously, to the extent the laws favor theism there is a resulting diffuse pressure being applied against atheism. Laws endorsing government sponsored theism communicate to the public that there are two tiers of beliefs regarding deity under the laws. There are theists who will leverage any privilege that they think they are granted, and entitled to, under the laws to act against public expressions of atheism or criticisms of theism.

Barker also cited the U.S. Supreme Court’s 2014 ruling in Town of Greece v. Galloway, which declared that governments cannot discriminate between different beliefs when selecting who gives government sponsored invocations, to support his legal challenge. Collyer, oddly, declared that the ruling didn’t apply to Barker because the justices did not cite atheists in that particular decision. “To decide that Mr. Barker was discriminated against and should be permitted to address the House would be to disregard the Supreme Court precedent that permits legislative prayer,” the judge said.

Judge Collyer is singling out atheists for the negative purpose of refusing to apply an otherwise generally applicable civil rights protection that the Supreme Court recently reasserted. She is inserting a 'discriminate against atheists' clause into the law. Atheists lack generally applicable civil rights protections unless the Supreme Court explicitly says otherwise, according to Collyer.

Insofar as it is true that government sponsored legislative invocation is, by default, for theists only, as Collyer dubiously claims, it follows that the practice of legislative invocation itself violates the constitution for favoring theism over atheism and discriminating against atheist citizens. But legislative invocation was initiated during the first congress and declaring it unconstitutional would be difficult. Therefore, judges who are committed to the constitution and its civic equality protections should be defining legislative invocation as open to people of all beliefs, include those who believe that there is no deity to speak to. This would be easy to do and, contrary to what Collyer says, would not conflict with Supreme Court rulings.

Congress is a place where people occasionally say something that others who are present and listening disagree with, so what is the problem? An opening Congressional invocation by Dan Barker that does not cite deity is not going to infringe on anyone else's rights. Barker, not surprisingly, said he is disappointed with the ruling, complaining that it allowed the House chaplain’s ”personal biases against the nonreligious” to block him from fully participating in our government. I agree.

Sunday, October 08, 2017

The redistricting method of the future

Maryland Redistricting Reform Commission
Office of Governor Larry Hogan

Honorable members of the Redistricting Reform Commission:

Maryland law says: "Each legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population. Due regard shall be given to natural boundaries and the boundaries of political subdivisions." Census tracts average about 4000 people, but in Maryland some census tracts have 24000 people. There are currently 1394 census tracts for about 5.8 million people. A Senate district is currently sized at 123,000 people +/- 4.7%. There are about 30 tracts per Senate district.

These numbers are well suited for mathematical optimization. The general idea is to define the redistricting task as sets of constraints and one or more optimization goals that are precisely defined as equations. Some optimization methods require a single optimization equation. Combining multiple optimization goals that are represented by different units of measurement can be a complication. It is possible to utilize multiple optimization goals that are represented by a common measure, such as a percentage, to avoid this complication.

The more goals there are the greater the risk that different goals will conflict with each other. The tighter the constraints the more likely that there will be no feasible solution. Therefore, it is preferable for the number of different optimization goals to be low or be selected to be non-conflicting and to take precautions that ensure the constraints are realistic.

Contiguity is a constraint. A maximum count of district boundaries crossing significant political subdivisions and natural boundaries are additional constraints. The Redistricting Reform Commission is proposing a maximum +/- 1% population variance which could be implemented as another constraint. Maximum compactness can be the optimization goal, or compactness could be combined with minimum population variance as the optimization goal.

Viable optimization algorithms for redistricting are heuristics that obtain a good result quickly. This is because redistricting optimization is technically a very difficult problem to solve given the vast number of possible solutions. Different software on different computers with different optimization algorithms will produce different results. These different results can be ranked by the optimization goals equation. This presents an opportunity to implement redistricting as a contest. Competitors can be given instructions for how to submit redistricting map proposals. The earliest submitted redistricting map that generated the highest optimization score while meeting all constraints would be automatically adopted. As an incentive the winning proposal could receive a cash award.

Compactness can be measured by boundary shape. Or by the degree to which the district spreads from a central core, called "dispersion". Or by housing patterns, which is sometimes referred to as population compactness. District tendrils are less meaningful in sparsely populated areas but more meaningful where the population is densely packed. The ratio of the proposed district's perimeter and the perimeter of a circle with the same area size is an example of a boundary shape measure of compactness.

Members of the Redistricting Reform Commission should consult with the computer science and mathematics departments at universities and colleges, particular those that offer graduate degrees in Operations Research, for expert advice. Examples of automated computer redistricting, some with free source code, are available on the Internet (,,,, and Applicable algorithms include polygonal clustering, graph partitioning, simulated annealing, and tabu search, among others. Spatial contiguity can be formulated in a mixed integer programming framework, so mathematical programming methods may also be viable.

The district boundaries after each census could be very different from the prior boundaries, which can contribute to making elections more competitive. The result of relying on mathematical optimization for redistricting will be gerrymander free and fair by the "justice is blind" standard. There is no need for a redistricting committee. A voting rights committee composed of former judges could be responsible for splitting some Senate districts into two or three Delegate districts to try to ensure compliance with the Voting Rights Act of 1965.  

Currently the Delegate districts are three member by default but with 16 one member and 12 two member districts that are not publicly explained. The Governor's Redistricting Reform Commission is recommending one member Delegate districts by default with fewer exceptions. However, one member Delegate districts give each citizen fewer representatives assigned to different committees which weakens citizens' influence over the bills. The committee votes on bills are more important than the floor votes because bills that fail in committee almost always die and bills approved in committee usually also pass when they go to floor vote. The small size of single member Delegate districts risks rendering a +/- 1% population variance constraint along with the other constraints impossible. Also, one member Delegate districts undermines Maryland's ability to demonstrate compliance with the Voting Rights Act because occasionally merging Delegate districts is unlikely to increase minority representation. 

It may be better to retain the current three member Delegate district default and require that all exceptions be justified in writing as promoting increased minority representation in accordance with the Voting Rights Act. Alternatively, mathematical optimization could draw three Delegate districts in each Senate district but with somewhat different constraints and optimization goals then were utilized to draw the Senate districts. In particular, the optimization goal could be revised to prioritize meeting the requirements of the Voting Rights Act and the constraints could be loosened for those Senate districts that have a demographic profile which introduce Voting Rights Act compliance concerns. Dividing each Senate district into three Delegate districts could be a contest for finding the best redistricting map. This would create a two phase redistricting process, Senate districts first, Delegate districts second, that will increase the time needed to complete redistricting.

Federal redistricting standards are somewhat different from the state standards.  Also, Congressional districts effect the national election and thus are no longer only about the state of Maryland. If Maryland stops gerrymandering Congressional districts while Republican states continue to gerrymander then the next federal elections results will be more favorable for Republicans. It is more likely that a General Assembly redistricting reform bill will be enacted if it is not paired with Congressional redistricting. Therefore, it would be better for the Governor's office and lawmakers to place Congressional redistricting reform proposals into a separate bill, or postpone Congressional redistricting reform until after a multi-state reform collaboration effort that crosses the partisan divide is arranged. 

Mathematical optimization is the redistricting method of the future. Reliable enabling technology is available. Maryland has people with the skills needed to implement automated redistricting. I appeal to the Commission and state lawmakers to seriously consider mathematical optimization for redistricting.

Mathew Goldstein

Friday, October 06, 2017

Religion sometimes threatens civil liberties and rule of law

By Mathew Goldstein

The Justice Department claims that the free exercise of religion clause of the first amendment to our constitution includes the freedom to act as one's religion demands even when such actions curtail the civil rights of others or conflict with the laws.  This threatens the rights of countless Americans, particularly religious minorities and nontheists.  We see this in the recent executive order granting employers the option to omit contraceptive coverage from employer sponsored health insurance plans.  We see this in the recent Justice Department amicus brief supporting a baker who refused to provide a same gender couple with a marriage cake.  If free exercise of religion is not limited by civil rights protections, or generally applicable laws with good secular justifications, then where is the stopping line?  How does a judge decide that a free exercise claim goes too far?

It is difficult to fathom how a business that is owned by holders of publicly traded stock can be said to worship a deity, or posses a religious belief, let alone exercise a religion.  A way to avoid this difficulty has been to limit the applicability of free exercise claims to privately owned and "closely held" business.  In a private ownership context the business is deemed to be a vehicle through which the business owners practice their religion.  Donald Trump's recent executive order exempting businesses from including contraceptive coverage in health plans dispensed with this publicly owned versus privately owned distinction.  This will provoke lawsuits because it is so unprecedentedly broad.

The approach taken by this Republican party administration, and to some extent by the Republican party more generally, favors allowing businesses to refuse to sell products or services to, and maybe also refuse to hire or promote, individuals who do not respect whatever false beliefs, or unjustified limits on behavior, the business decides to impose on its customers or employees in the name of exercising any of the many religions. The Justice Department now appears to be arguing that a federal contractor should be able to refuse to provide services to people, including in emergencies, without risk of losing federal contracts and that organizations which were prohibited from requiring all of their employees to follow the tenets of the organization's faith should instead be able to discriminate against such employees.

An obvious problem with interpretations of free exercise of religion that privileges religious beliefs over other beliefs is that religious beliefs are themselves contradicted by religious beliefs so that there is no way to adjudicate between conflicting free exercise claims without denying someone their free exercise of their religion.  Another problem with privileging religious beliefs is that there is a lack of proper justification for the laws treating opposing beliefs differently.  If person P1 claims X is their religious belief and person P2 claims ~X is their corresponding anti-religious belief then why should the law favor X over ~X?  

We already know whose free exercise of religion will be disadvantaged if judges are required to resolve clashes between conflicting beliefs.  The free exercise of religion by employers will triumph over that of employees and customers.  Otherwise, the adherents of the smaller, less wealthy, less popular, less organized, less zealous, religion, or the religion that the judge disfavors, will partially lose free exercise of their religion. 

Free exercise is a meritorious and viable legal principle when it functions as a general protection against government repression of religions, provided that it is subordinate to civil rights equity principles and to laws that are evidenced to promote human welfare, regardless of employer, employee, or customer status.  The resulting secular laws may sometimes conflict with religiously motivated practices.  In that case the religious practices lose.  Interfering with religious practices is not a secular goal, it is a last resort from practical necessity.

It is not difficult to understand why some religious people who are convinced that their religion is both factually true and important object when their religious motivated practice is being restricted to accommodate those who have contrary beliefs or to respect secular laws. Insofar as our laws conflict with religious beliefs, those religious beliefs are arguably being disadvantaged, and therefore we should not be surprised if some people react negatively.  Secular democratic government depends, at least to some extent, and arguably to a large extent, upon the citizenry being, at least to some extent, secular.  

Accordingly, people who value secularism should argue publicly for secular government, but by itself that will not suffice.  We also need to argue more generally against religion as an arbiter of the facts about how the world works because the inability of religion to identify facts about how the world works is the reason that laws should be secular instead of religious.  If it were otherwise, if religion was a valid method for determining how the world works (if our universe was supernatural) then our laws should be religious instead of secular.