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About Tony Rubolotta
Tony Rubolotta works in the technology industry.
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Contesting Jillette on Public Property
Tony Rubolotta
March 20, 2013
I recently came across an interview of Penn Jillette (of Penn and Teller) by Glenn Beck on The Blaze dated December 7, 2012. Jillette describes himself as a libertarian atheist and more importantly as a Constitutionalist. His interview with Beck mostly validates that claim and I view Jillette as an ally in common cause to re-establish the rule of the Constitution in America. That being said, it is still possible for allies to have disagreements over fundamental issues related to the Constitution. I write this in that spirit, not as a condemnation of Jillette but an exploration of certain views he expressed.

At one point in the interview, Beck referred to a small town in Pennsylvania that had removed a Nativity display from public property because of a complaint from one person. The town had decided it was not worth fighting over. The ensuing discussion piqued my interest because there seemed to be some contradictions in Jillette's stance.

He had argued, and I think rightfully, that religious institutions should remain free of government interference provided they do not accept government money. One example he cited was the Catholic Church's refusal to comply with any requirements of ObamaCare that violate Catholic doctrine and teaching. Jillette supported the church position, conditioned on the Catholic Church not accepting government money.

While this is an area rich in Constitutional contradictions and violations, it was not pursued and I will save that for some other time. Nonetheless, on basic principles, I agree with Jillette. The Catholic Church has created this problem for itself when it jumped on the government gravy train long ago and accepted the notion government should fund charities.

My point of dissension with Jillette came up over another area of government funding, and that is public property. Yes, the government, local, state or federal, is permitted to acquire, develop and maintain property for public use. It does this all the time to build roads and bridges, parks, watersheds and certain public utilities. We could argue which of these uses may or may not be within the scope of legitimate powers exercised at each level of government, but that is a point to pursue at another time.

Jillette offered an opinion and illustrated his point by using the Boy Scouts of America. He stated that the Boy Scouts, as long as they did not accept government money, were free to set their membership requirements to exclude gays and atheists, but should be prohibited from using public property. His reasoning is that allowing groups the use of public property is in essence forcing him to pay to support that group. More directly, if the group receives a benefit derived from his payment, and if the group has a religious test, it should not be allowed to use public property because that violates his First Amendment rights.

I would ask Mr. Jillette to consider the following points. We have public roads and sidewalks, both considered public property. Are the Boy Scouts to be prohibited from using the roads and sidewalks? Many communities obtain water from public wells and watersheds. Are the Boy Scouts to be prohibited from using water from these public properties? If you would deny the Boy Scouts use of a public park for recreation, why would you allow them to use any public property whatsoever, or is your objection arbitrary? Why do you single out recreational use but not impose the same restrictions on transportation? What about public sponsored entertainment such as free concerts in public parks? Are the Boy Scouts banned from attendance and only permitted to attend if they do so as individuals and required not to wear their uniforms? What about groups that support practices that violate my religious beliefs? Should groups that advocate abortions be banned from using public property because I find them offensive to my beliefs?

The First Amendment right Jillette uses to support his argument is only a selected part of the First Amendment. The relevant parts are "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; ..." The "free exercise thereof" part is under assault and conveniently forgotten or ignored by those obsessed with using the first clause as a weapon against religion. If a private group uses public property to express their religious belief or have a picnic, is that respecting the establishment of religion or respecting the right of free exercise? These are not mutually exclusive and government has no active role other than providing the land where citizens can exercise their rights, whether it is a public sidewalk or public park.

There is a strange phenomena occurring in this country where the Bill of Rights is banned on public property but enforced with a vengeance on private property, but quite selectively as suits the government, and most particularly regarding religion. I do not believe government should pay for Nativity displays, but I also do not believe government should prohibit those displays on public property in violation of the First Amendment. No group should be required to pass a non-religious test in order to use public property. To require such a test is totalitarian, not libertarian.

I still embrace Penn Jillette as an ally in this critical struggle to restore Constitutional law to America because he is sincere in his efforts to adhere to the Constitution. Just be aware that even allies can have differences and while we may debate and disagree on specific interpretations or applications, we agree on the authoritative source that should inform us when forming our opinions. That source is the Constitution, in plain English the way it was meant to be read and understood.

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