Thursday, April 24, 2014

Dale and Diversity

Does expressive association threaten society's commitment to diversity?

Mike McConnell responded to this concern in his brief for the Boy Scouts in Dale. The argument is that not only does expressive association not threaten diversity, it is absolutely essential to the very idea of diversity. McConnell put it like this: "A society in which each and every organization must be equally diverse is a society which has destroyed diversity."

Do you understand the point Mike was making here?

Citizens United: Notes and Questions

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Does the first amendment protect speakers or “speech?"

Should it matter whether the speaker is a corporation or a natural (i.e. human) person?

Who is the speaker in the movie Hillary?

The corporation that paid to make the movie available to the public?

The director and producer of the film?

The writers who wrote the screenplay (the narration, etc.)?

What about listeners? Do willing members of the audience for speech have a right to receive speech?

For example, if government bans corporations from distributing films such as Hillary, doesn’t this restriction deprive natural persons, such as me and you, access to the film?

As the Supreme Court once put it: "The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers."

Suppose the State of Mississippi forbids the possession of books written by Karl Marx. Of course, Marx is not around to sue to challenge this censorship law's constitutionality under the First Amendment. Do I have a right, as a willing audience for Marx's books, to challenge the law under the First Amendment?

Prof. Kathleen Sullivan says that one difference between the majority and the dissent is that the majority has a vision of free speech as liberty and the dissent has a vision of free speech as equality. As she puts it:

"The outcome of Citizens United is best explained as representing a triumph of the libertarian over the egalitarian vision of free speech."

In other words, the dissent is okay with government prohibiting freedom of speech by wealthy corporations, because this amounts a redistribution of "speaking power" from powerful corporations to natural persons.

Of course, media corporations were exempt from the restriction, and some might conclude that this allows certain powerful corporations to select which political news and viewpoints are "fit to print" for natural persons to see or hear. Perhaps non-media corporations have a different view of what is fit for audiences to see? Perhaps audiences would like to decide for themselves?

And here is how Prof. Rick Hasen summarizes the debate:

Since 1976, when the Supreme Court decided the seminal case of Buckley v. Valeo, the Justices have been locked in what both sides see as a Manichean struggle over the constitutionality of campaign finance regulation. On one side are those Justices who view the world of politics as fraught with corruption and undue access for the wealthy; they worry that voter confidence gets shaken by each new campaign finance scandal. On the other side are those Justices who see any limitation on money in politics as overt government censorship that violates the First Amendment; they fear that incumbents will squelch criticism in a replay of the Alien and Sedition Acts. Justices fight this rarefied battle with jurisprudential jargon that parses levels of scrutiny, compelling interests and the appropriate tailoring of the law, but it is this fundamental difference in worldviews that really drives the Court’s debates. And as Court personnel shifts—or, less often, Justices change their minds—the Court’s doctrine swings like a pendulum, alternating between deference and skepticism toward the regulation of campaign finance.

Dale and the Right of Expressive Association

Is the Boy Scouts an "expressive association?" Is one of the purposes of the Boy Scouts to associate "in pursuit of, economic, educational, religious, and cultural ends." (casebook p. 1458)

If so, will "forced inclusion" under public accommodation laws of openly homosexual persons such as Dale "affect in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express." (casebook p. 1458)

Would forced inclusion of Duck Guy Phil Robertson as a leader of a GLBT Youth Group interfere with the group's right of expressive association?

What about forced inclusion of David Duke as a leader of the NAACP Youth Group?

What about a radical feminist group that believes that all men oppress women and wishes to exclude a man from leadership?

Don''t Forget State Constitutions

From How Appealing:

"Atheists' new plan of attack against Pledge of Allegiance: state courts; An atheist New Jersey family is saying the phrase 'under God' in the Pledge of Allegiance is a violation of their equal protection under state law; Previously, such lawsuits were filed in federal court." The Christian Science Monitor has this report.

Monday, April 21, 2014

Symbolic Speech: The O'Brien Test

Once we are dealing with symbolic acts, O’Brien gives us a four-part test for determining when a government interest in regulating the nonspeech element sufficiently justifies the regulation of expressive conduct:

The government regulation of expressive conduct is valid if:

1) it is within the Constitutional power of government [raising an army]

2) furthers an important or substantial interest [preventing harm to the smooth and efficient functioning of the Selective Service System]

3) if the governmental interest is unrelated to the suppression of free expression; and

4) if the incidental restriction on free expression is no greater than is essential to the furtherance of that interest.

By the way, notice how the Court totally rejects a "purpose" test under the Free Speech Clause. The Court's objections here (p.1436) are basically the same as Justice Scalia's objections to a "purpose" test under the Establishment Clause. Notice that, somehow, the EC seems to be an exception to every normal rule the Court applies to every other constitutional claim--standing, incorporation, purpose, government speech, etc. Where in the text of the Constitution is this special status for the EC?

Texas v. Johnson: Five Principles

Prof. Amar says cases like Texas v. Johnson are important for many reasons. He says the Court is concerned with at least "five basic First Amendment principles.”

Let’s look at these principles:

First, symbolic expression – burning a flag, displaying a swastika – is fully embraced by the First Amendment. Notice that some have argued that symbolic speech, such as burning a flag, can be regulated as “conduct.”

Second, government may not regulate the physical medium with the purpose of suppressing the ideological message. So you can ban public burning for environmental reasons, but not disrespectful burning of the American flag.

Third, political expression – especially expression critical of government – lies at the core of the First Amendment.

Four, courts must guard against attempts by government to suppress disfavored viewpoints

Five, exceptions to these principles must not be “ad hoc” – i.e. “Flag burning is different” or “Hate speech” is different. [“seditious libel” is different” or “dirty words are different” or “sexual expression is different”]

The Right Not To Speak (Speaker Autonomy)

From Wooley: "We begin with the proposition that the right of freedom of thought protected by the First Amendment...includes both the right to speak freely and the right to refrain from speaking at all." 430 U.S. at 714.

In Hurley, Justice Souter compared the idea of speaker autonomy--the right of the speaker to shape her "expression by speaking on one subject while remaining silent on another" (515 U.S. at 574) to that of a composer of a musical score who selects which notes to include and which to exclude.

Do you see how the idea of speaker autonomy extends to the right of an expressive association to decide to exclude unwanted members from the group?

In Dale, here is how the Boy Scouts argued their case:

"The freedom at issue here has both affirmative and negative aspects. The affirmative aspect is the right of the expressive association to select leaders who will communicate the organizations beliefs....The negative aspect is the right not to be associated with [leaders who are associated with] ideas and beliefs the organization does not wish to endorse."

Is David Duke or another known-supporter of the KKK a good spokesperson/leader/representative for the ideas sought to be advanced by the NAACP? If a law were passed forbidding the NAACP from excluding someone like David Duke from a leadership position in the association, would it impair the NAACP's ability to clearly express its message of racial equality and racial tolerance?

Should a GLBT youth organization be free to exclude Duck Commander Phil Robertson from a leadership position because of his conservative beliefs about the sinfulness homosexuality?

Friday, April 18, 2014

Dariano v. Morgan Hill

Let's start class with a discussion of this case.

Here is what I would like you to think about--suppose you were a school board lawyer consulted by the Principal before making a decision about the flag tee shirts. What would your advice be?

Rust vs. Rosenberger

In cases concerning government funds being used to selectively subsidize speech, one of the major issues is to distinguish between Rust and Rosenberger. For example, in a case like Locke v. Davey, ask yourself whether the case is more like Rust or more like Rosenberger (or perhaps it is not like either).

I think the crucial distinction between Rust and Rosenberger is that in the former case funds were being used to subsidize the Government's own message, while in the latter case funds were being used to facilitate private speech.

Here is how the Court in Rosenberger itself tried to explain its prior decision in Rust:

When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. In the same vein, in Rust v. Sullivan, supra, we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. 500 U.S., at 194. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.

Rust Hypo

Suppose Congress decided to fund a Racial Tolerance Program and further decided to award grants to private grantees for after-school programs designed to teach children about racial tolerance and equality. Now suppose government learns that one of its funded projects is promoting racial segregation and White Supremacy. May the government forbid these teachings by one of its grantees in a funded Racial Tolerance Program? Or is this viewpoint discrimination that violates the 1A?

Now suppose that a public school board contracts with a publisher to put together a textbook on evolution for use in the public schools. The publisher puts together a text that adopts a creationist perspective on human origins. The school district refuses to accept and pay for these textbooks. Is this unconstitutional viewpoint discrimination?

Or suppose the State of Nebraska contracts with an artist to paint a patriotic mural on an interior wall of the capitol. If the artist paints a mural depicting Amerika as an evil killer of innocent Native Americans, must the state accept and pay for the mural?

Now suppose a state law school pays a private consulting firm to do admissions recruiting. May the school instruct the consulting firm not to discourage racial minorities from applying? Is this viewpoint discrimination? Or merely the law school insisting that its subcontractor do the job it was hired to do?

Finally, suppose the Government decides to fund a health program designed to promote healthy lifestyles. It relies on private health care providers as grantees to provide "healthy lifestyle" counseling. May the Government stipulate that none of these funds may be used "to promote smoking as a healthy lifestyle?"

Thursday, April 17, 2014

"Be happy Not Gay" Slogan on Student Clothing Protected by 7th Circuit

From ReligionClause blog:


7th Circuit Upholds Injunction Permitting "Be Happy, Not Gay" Slogan on Student Clothing

In Zamecnik v. Indian Prairie School District #204, (7th Cir., March 1, 2011), the U.S. 7th Circuit Court of Appeals upheld a trial court's entry of a permanent injunction permitting any student at a Naperville, Illinois high school  to display on clothing or personal items the slogan "Be Happy, Not Gay."  It also affirmed the trial court's award of damages of $25. The school had attempted to ban students from wearing the slogan on T-shirts under a rule that barred derogatory comments that relate to race, ethnicity, religion, gender or sexual orientation or disability.  The 7th Circuit had previously ordered the district court to enter a somewhat narrower preliminary injunction. (See prior posting.) The school now argued that it should have been entitled to a hearing to show that it had a reasonable belief it faced a threat of substantial disruption before a permanent injunction was entered. The 7th Circuit disagreed. The court relied in part on the "heckler's veto" doctrine-- that speech cannot be suppressed merely because those who disagree with it engage in threats or violence. Alliance Defense Fund yesterday issued a release discussing the decision.

From Religion Clause Blog

High Schooler Sues To Challenge Art Project Limits

As we study free speech of religious students in public schools, real life imitates the classroom. Here is an excerpt:

"In Madison, Wisconsin, a Tomah High School senior (identified as A.P.) last Friday filed a federal lawsuit challenging a school policy that prohibits art class projects from depicting "violence, blood, sexual connotations, [or] religious beliefs." In an art class assignment involving drawing of a landscape, A.P. included a cross and the words "John 3:16 A sign of peace." Teacher Julie Millin, asked him to remove the Bible reference because other students were making remarks about it. When A.P. refused, she gave him a zero on the project, showing him the class policy. A.P. responded by tearing up the policy statement in front of the teacher. She ejected him from class and he later received two detentions for tearing up the policy. In a later incident, A.P.'s metals arts teacher rejected his idea to build a chain-mail cross because it was religious.

The complaint in A.P. v. Tomah Area School District, (WD WI, filed 3/28/2008), alleges that the school policy and its enforcement against A.P. violates A.P.'s First and 14th Amendment rights. It says that other artwork with religious themes are displayed throughout the school and argues that "per se censorship of religious speech in assignments does not represent a legitimate pedagogical interest." A release yesterday by the Alliance Defense Fund contains links to copies of A.P.' drawing and to drawings of demonic images created by other students in the class. Yesterday's Racine (WI) Journal Times reports on the case."

Morse v. Frederick

Imagine two banners raised by students at the Olympic Torch Relay:

One "BONG Hits 4 Jesus"

Two "Legalize BONG HITS 4 JESUS"

If a public school restricts both banners and students sue under the 1A, how should these cases come out?

Should the two cases be decided the same way? (Which way?)

Or are the cases different in some material respect that would justify protecting one but not the other under the 1A?

Notice that Justice Alito authored a concurring opinion (joined by Justice Kennedy) in which he says "I join the opinion of the Court on the understanding (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"


Suppose the Olympic Torch Relay took place on a Saturday and that the school only encouraged students to attend this event. Same student, same banner. Same result?

Suppose a student has a "Bong Hits 4 Jesus" banner on his Face Book page. Can he be disciplined by the school for what he posts on line from his personal home computer?

Suppose a student posts something on Face Book--maybe a racist post about certain classmates--that would not be protected if he wore it to school as a statement on a tee shirt?

Suppose a 7th grade world history teacher asks students to write an essay on "the historical character whom I most admire." When Mary writes her essay on Jesus, he tells her that her topic is unacceptable because the school must honor separation of church and state. If Mary refuses the teacher's demand that she write a second essay and is given a grade of F for the paper, what are her rights under the First Amendment?

Tuesday, April 15, 2014

Spring 2014 Syllabus for Con Law II: Religion and the Constitution

Richard F. Duncan: Room 220 Law,, phone:472-6044
Office Hours: I don't maintain specific office hours; I have an open door policy and I will be in the office regularly and welcome your visits or appointments.

Class: This class meets from 10:25 until 11:50  on Thursdays and Fridays. Since the class meets for 85 minutes instead of 75 minutes, will meet 25 times rather than 28 times. Thus, we are required to cancel 3 classes during the semester.

Attendance Policy: Attendance is required.
Exam: Your entire grade for the course will be based upon your score on the final exam

Casebook: Cohen, Varat & Amar, Constitutional Law (Foundation Press 2009)

Online Materials: Professor William Linder's Exploring Constitutional Law (Link)

For Spring 2014, students should be prepared for 1 full assignment for each class. In other words, you should be prepared to discuss one complete assignments at all times. I may make a few minor adjustments to these assignments as the course progresses to include some links to recent First Amendment cases or issues.

Be sure to check this blog every day for announcements, additional required and optional reading, and discussion of cases and issues raised in the reading.

I. Establishment Clause

1. Duncan article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available (free download) at SSRN
Duncan article, "Justice Thomas and Partial Incorporation...." (link); Dreisbach article;
Handout No. 1

2. Casebook p. 1615-1620

3. casebook p. 1621-1630;  Linder Introduction (Link); Engel v. Vitale (Link);

4. Casebook p. 1630-1634; Handout 2; Prof. Linder on "The Evolution Controversy" (Link);"Justices Brennan and Scalia Debate "Creation-Science" in Edwards v Aguillard" (link)

5. Allegheny County case (link); Casebook p.1634-1651; Summun case (link)

6. Legislative Prayer: Chambers v. Marsh (link); Town of Greece (currently before SCOTUS)  is here

7. Handouts 3 and 4; Casebook p. 1651-1665.

8. Casebook p. 1665-1688.

9. Casebook p. 1689-1701; Rosenberger Oral Argument (listen in class); Arizona tax credit case (link)

10. Newdow case (Link) ; Casebook p. 1447-1448; my "clearest command" article (link)

II. Free Exercise Clause

1. Linder Introduction (Link); Reynolds case (Link)

2. Casebook p. 1702-1708; Goldman case (Link); Lyng case (Link)

3. Casebook p. 1709-1709; Handout 5; Handout 6 (Lukumi and Axson-Flynn) [I have decided not to assign the article by Prof. Choper; I think we have enough to read without it]

4. Hosanna-Tabor decision (link)

5. Locke v. Davey (Handout 7); Casebook p. 1722-1724; Cutter v. Wilkinson (link); Capstone problem (Free Exercise and Establishment Clauses): Colorado Christian University v. Weaver (link); my "clearest command" article (link)

III. Religion and Freedom of Expression: Public Forum Analysis, Public Schools, Subsidized Speech, Expressive Association, and Election Campaign Speech

1. Casebook p.1329-1348; McCullen v. Coakley (link); Scotus blog preview (link).

2.  Snyder v. Phelps (link); Casebook p. 1348-1364

[Note: I found an edited version of Snyder v. Phelps, and substituted the link ]

3. Casebook p. 1379-1400; Dariano (flag tee shirt case)(link)

4. Casebook p. 1401-1417; (Re-read Locke v. Davey Handout 7)

5. Casebook p.1435-1442

6. Casebook p.1447-1463; Christian Legal Society v. Martinez (link)

7. Citizens United (link)

Monday, April 14, 2014

Third Grade Speech Case

From the Religion Clause blog:

3rd Circuit Says School Can Bar Bible Reading At Kindergarten "Show and Tell"

In Busch v. Marple Newton School District, (3d Cir., June 1, 2009), the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, upheld a Pennsylvania elementary school's restriction that barred a kindergartner's mother from reading aloud from the Bible as part of a "show and tell" activity in her son's classroom. The teacher assigned each student an "All About Me" week, part of which involved a parent visiting the class and leading students in an activity or story. Donna Busch wanted to read from the Bible because it was her son Wesley's favorite book. Donna claimed that the school's refusal violated her free speech and equal protection rights, as well as the establishment clauses, under both the U.S. and state constitutions. The majority said in part:
Restrictions on speech during a school's organized, curricular activities are within the school's legitimate area of control because they help create the structured environment in which the school imparts basic social, behavioral, and academic lessons.... Principal Cook disallowed a reading from holy scripture because he believed it proselytized a specific religious point of view.
Judge Barry wrote a concurrence, saying:
children of kindergarten age are simply too young and the responsibilities of their teachers too special to elevate to a constitutional dispute cognizable in federal court any disagreement over what a child can and cannot say and can and cannot do and what a classmate can and cannot be subjected to by that child or his or her champion.
Judge Hardiman dissented as to plaintiff's free speech claim, arguing that the school had engaged in unconstitutional viewpoint discrimination:
Clearly, "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings."... It does not follow, however, that the state may regulate one's viewpoint merely because speech occurs in a schoolhouse — especially when the facts of the case demonstrate that the speech is
personal to the student and/or his parent rather than the school's speech. The majority’s desire to protect young children from potentially influential speech in the classroom is understandable. But that goal, however admirable, does not allow the
government to offer a student and his parents the opportunity to express something about themselves, except what is most important to them.
Yesterday's San Jose (CA) Mercury News reported on the decision. (See prior related posting.)


Okay, now change the facts and ask yourself whether this changes your mind about the proper outcome of the Free Speech issue in the case above.

Now the student is Mary and she is the child of a same-sex couple, Alice and Sally. On "all about me" day Mary's mom, Alice, wishes to read from Mary's favorite children's book, Heather Has Two Mommies, a book about a same-sex family. The teacher forbids Alice to read from this book, because some parents don't want their young children exposed to issues about sexual orientation and same-sex relationships.

How would you rule on Mary and Alice's free speech claim?

I think the dissent got it right in the Busch case, but this is, after all, a curriculum speech case (i.e. Hazelwood not Tinker). The irony is that this was an "all about me" day, designed to promote self-esteem for each child. As it turns out, it is--for religious children--an "all about me except the most important thing about me" day, a program that a reasonable observer might well perceive as endorsing a message of disapproval concerning the religious "me" of children of faith.

If neutrality is the goal of the First Amendment, it would be better not to have this kind of "all about me" day at all, rather than to have it and then force religious children to create a false "me" because their authentic "me" is religious and thus unacceptable.

And again, this is why I believe we need school choice for all families with children. Not everyone's favorite book is a secular one.

I hope this case reaches the Supreme Court.

Tinker: Some Questions

Prof. Linder poses several good questions(link) for you to ponder:

1. Do the speech rights of students increase as they get older? Do high school students have the right to speak in ways that elementary school students do not? To university and graduate school students have the right to speak in ways that might be punished if they were students in a high school?
2. Would Mary Beth Tinker have a First Amendment right to wear a bright pink armband, just because she thought it was fashionable--or could school administrators in that case enforce a "no armbands" policy? What does a bright pink armband say?
3. Would Tinker have a right to wear a black armband in protest of the Viet Nam War even if no one understood the message she was attempting to communicate?
4. Would Tinker have come out differently if school administrators could have demonstrated that the armband caused loud debates to break out in class? Fights to break out in the hall?
5. In Tinker, the Court noted that the school banned armbands, but allowed other sorts of expression such as "Vote for Nixon" or "Vote for Humphrey" buttons. Would the school have had a stronger argument if it banned ALL forms of symbolic expression, campaign buttons, and clothing with messages? Would the school have prevailed in that case?

6. Does a student in a predominately Jewish school have the right to wear a swastika to class to demonstrate his support for Nazi ideology? Does the First Amendment protect symbolic student speech only so long as it is not TOO controversial?

Graduation Ceremonies

The First Amendment Center has a very good summary of the EC and Free Speech issues concerning prayer at public school graduation ceremonies. It is worth a look.

With respect to valedictorian speeches, much depends upon how much control the school maintains over the content of the speech. The more control the school maintains over the content of the "student speech" (such as a requirement that the student submit a draft of the speech to school authorities for approval), the more likely it is that the EC will prevail over the student's free speech rights. However, if the school policy makes clear that the valedictorian's remarks are his or hers alone (remember the value of a disclaimer on this point), the more likely it is that the EC will not interfere with the free speech rights of the student speaker.

Free Speech as Protecting Freedom of Thought and Conscience

Laurence Tribe, 57 U. Chi. at 1069:

Suppose that the government conspired with the TV networks to include subliminal messages urging viewers to “return the Administration to office” in key broadcasts shortly before a national election. Would this action violate any of your rights? The literal terms of the First Amendment do not prohibit such messages, but Justice Harlan's point was that the freedom of speech, the freedom of religion, and so forth make sense only if connected by a broader and underlying principle of freedom of thought and conscience.

See also Griswold opinion explaining the right of parents to educate their children in non-public schools as advancing the idea that:

the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only to utter or print, but the right to distribute, the right to receive, the right to read, and freedom of inquiry, freedom of thought, and freedom to teach, indeed the freedom of the entire university community.

See also Wooley v. Maynard: "We begin with the proposition that the right of freedom of thought protected by the First Amendment...includes both the right to speak freely and the right to refrain from speaking at all." 430 U.S. at 714.

Can government use its control over K-12 education funding to teach a captive audience of impressionable children the "truth" about human origins, sexual morality, marriage, family and many other values-laden concepts? Is this consistent with freedom of thought and belief-formation?

School Dress Codes and First Amendment

From the Religion Clause blog:

In Jacobs v. Clark County School District, (9th Cir., May 12, 2008), the U.S. 9the Circuit Court of Appeals, in a 2-1 decision, rejected a challenge to a Nevada school district's school uniform policy that precluded plaintiffs from wearing T-shirts with printed messages on them. At least one time this involved sanctions for wearing a T-shirt displaying a religious message. The majority found that the uniform policy was both viewpoint- and content-neutral, and need satisfy only an intermediate scrutiny standard. Here the policy furthered important governmental interests unrelated to the suppression of speech, and leaves open alternative channels of communication. The opinion also rejected the argument that the dress code compelled students to express a view in favor of uniformity. The majority additionally rejected plaintiff's free exercise of religion claim, finding that the uniform code was a neutral rule of general applicability.

Judge Thomas dissented arguing that the regulation was not viewpoint neutral since it permitted T-shirts with slogans supporting the school. He also argued that the government's purpose in imposing the uniform rule was not substantial enough to outweigh students' speech rights. Today's Las Vegas Review Journal reports on the decision.

Interesting (I Hope) Pico Hypo

Imagine a city with two displays in the public square one December: a nativity scene (without plastic elves or talking wishing wells) in one public park, and a "gay pride--stop homophobia display" in a second public park. Both displays provoke complaints--the nativity scene by an atheist such as Mr. Newdow who, when he sees the nativity display, is offended by the religious nature of the display (and feels like an outsider, "not a full member of the political community"); and the gay pride display by an Orthodox Jew whose religious conscience is offended when he sees that display and also feels like an unwelcome outsider and not a respected member of the political community.

The city, wishing to avoid controversy and to offend no one, removes both displays.

Under County of Allegheny, did the city have a duty to remove the nativity display?

But now suppose this--supporters of the gay pride display sue claiming that they are a willing audience for the city's message of gay pride and thus, under Pico and the Free Speech Clause (see p. 1387) of casebook), have a right to "receive" the "information and ideas" expressed by the gay pride display without censorship imposed by the city to satisfy the demands of "hecklers" and others who don't like the message. See Laycock, 118 Harv. L.Rev. at 192: "The Free Speech Clause protects audiences as well as speakers." (citing Pico).

Do the Pls have a good claim? How do you think the Supreme Court would decide this case?

Can it be that the same First Amendment (1) requires the city to remove the first display to protect the interests of those offended, and (2) forbids the city from removing the second display to protect the interest of its willing audience against a heckler's veto? In other words, the city must appease the heckler in one case and is forbidden from appeasing the heckler in the second case.

Does this make sense? Is it fair and just?

If supporters of the gay pride display have a right to "receive" it, do supporters of the Nativity display have a right to "receive" it?

In other words, is the EC being used in the Nativity case to restrict the liberty to receive speech in order to advance the interest of hecklers to censor speech? Again, this is a "partial incorporation" issue.

This issue also came up a little in the recent Summum decision, and I had an interesting online debate with several other con law profs, a summary of which you can find here.

Public School Student Speech Cases

I. Tinker

A student's right to speak (even on controversial subjects such as war) in the cafeteria, the playing field, or "on the campus during the authorized hours" is protected so long as he does so "without materially and substantially interfering with appropriate discipline in the operation of the school and without colliding with the rights of others."

II. Fraser

1. Perhaps an ad hoc rule denying the right to engage in "profane" and "vulgar" speech
2. More likely a rule governing the school's right to determine "what manner of speech in the classroom or in school assembly is inappropriate" (student speech that is within the curriculum as opposed to personal speech)

III. Hazelwood

"[E]ducators do not offend the First Amendment by exercising control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."

IV. Morse

1. Probably a narrow, ad hoc rule permitting educators "to restrict student expression [at a school event] that [the administrators] reasonably regard as promoting illegal drug use."

2. Alito and Kennedy make clear that they join the opinion with the understanding that "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"

V. Forum Cases

Don't forget the forum cases, such as Widmar and Mergens. If a public school creates a forum for student speakers or student groups, forum rules apply and equal access is probably required in most cases.

Thursday, April 10, 2014

Krishna Case: Justice Kennedy's Test For New Traditional Public Fora

Consider Justice Kennedy's concurring opinion on the issue of whether an airport is a "traditional public forum:"

This analysis is flawed at its very beginning. It leaves the government with almost unlimited authority to restrict speech on its property by doing nothing more than articulating a nonspeech-related purpose for the area, and it leaves almost no scope for the development of new public forums absent the rare approval of the government. The Court's error lies in its conclusion that the public forum status of public property depends on the government's defined purpose for the property, or on an explicit decision by the government to dedicate the property to expressive activity. In my view, the inquiry must be an objective one, based on the actual, physical characteristics and uses of the property. The fact that in our public forum cases we discuss and analyze these precise characteristics tends to support my position....

I agree with the Court that government property of a type which by history and tradition has been available for speech activity must continue to be recognized as a public forum. In my view, however, constitutional protection is not confined to these properties alone. Under the proper circumstances I would accord public forum status to other forms of property, regardless of their ancient or contemporary origins and whether or not they fit within a narrow historic tradition. If the objective, physical characteristics of the property at issue and the actual public access and uses that have been permitted by the government indicate that expressive activity would be appropriate and compatible with those uses, the property is a public forum. The most important considerations in this analysis are whether the property shares physical similarities with more traditional public forums, whether the government has permitted or acquiesced in broad public access to the property, and whether expressive activity would tend to interfere in a significant way with the uses to which the government has as a factual matter dedicated the property. In conducting the last inquiry, courts must consider the consistency of those uses with expressive activities in general, rather than the specific sort of speech at issue in the case before it; otherwise the analysis would be one not of classification but rather of case-by-case balancing, and would provide little guidance to the State regarding its discretion to regulate speech. Courts must also consider the availability of reasonable time, place, and manner restrictions in undertaking this compatibility analysis. The possibility of some theoretical inconsistency between expressive activities and the property's uses should not bar a finding of a public forum, if those inconsistencies can be avoided through simple and permitted regulations.
505 U.S. 695, 698-699 (Justice Kennedy concurring)

Forbes Case

I. Designated vs. Non-public Fora

Under our precedents, the AETC debate was not a designated public forum. To create a forum of this type, the government must intend to make the property “generally available,” to a class of speakers. In Widmar, for example, a state university created a public forum for registered student groups by implementing a policy that expressly made its meeting facilities “generally open” to such groups. A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.

These cases illustrate the distinction between “general access,” which indicates the property is a designated public forum, and “selective access,” which indicates the property is a nonpublic forum. On one hand, the government creates a designated public forum when it makes its property generally available to a certain class of speakers, as the university made its facilities generally available to student groups in Widmar. On the other hand, the government does not create a designated public forum when it does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, “obtain permission” to use it.

(citations omitted).

II. Non-public Forum Rule

The debate's status as a nonpublic forum, however, did not give AETC unfettered power to exclude any candidate it wished. As Justice O'CONNOR has observed, nonpublic forum status “does not mean that the government can restrict speech in whatever way it likes.” To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property.

Forbes (citations omitted).

III. Justice Stevens Dissent (ad hoc, subjective decisionmaking)

The Court has decided that a state-owned television network has no “constitutional obligation to allow every candidate access to” political debates that it sponsors. I do not challenge that decision. The judgment of the Court of Appeals should nevertheless be affirmed. The official action that led to the exclusion of respondent Forbes from a debate with the two major-party candidates for election to one of Arkansas' four seats in Congress does not adhere to well-settled constitutional principles. The ad hoc decision of the staff of the Arkansas Educational Television Commission (AETC) raises precisely the concerns addressed by “the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.”

In its discussion of the facts, the Court barely mentions the standardless character of the decision to exclude Forbes from the debate. In its discussion of the law, the Court understates the constitutional importance of the distinction between state ownership and private ownership of broadcast facilities....

Like the Court, I do not endorse the view of the Court of Appeals that all candidates who qualify for a position on the ballot are necessarily entitled to access to any state-sponsored debate. I am convinced, however, that... constitutional imperatives command that access to political debates planned and managed by state-owned entities be governed by preestablished, objective criteria. Requiring government employees to set out objective criteria by which they choose which candidates will benefit from the significant media exposure that results from state-sponsored political debates would alleviate some of the risk inherent in allowing government agencies-rather than private entities-to stage candidate debates.

Forbes (Stevens, J. dissenting) (citations omitted)

Friday, April 04, 2014

Frisby: Some Questions

The Court says that "a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood."

So TPF rules apply. This ordinance is content neutral because it bans all focused residential picketing.

But suppose it prohibited only "picketing focused at the home of a health care provider."

Or, during the Vietnam way era, "picketing focused at the home of an employee of a chemical company that manufactures napalm?"

Does the ordinance advance a "significant government interest?"

Is it narrowly tailored? What does that mean?

Does it leave open "ample alternative channels of communication?"

What about the Westminster Ordinance?

Snyder v. Phelps

1.Notice that tort law can be a greater threat to civil liberties than even criminal law. Contrast a $500 fine for disturbing the peace by speech to almost $11 million in damages in tort for intentional infliction of emotional distress. If I taught torts, I would be pointing out liberty issues almost every day! The "unreasonably reasonable" reasonable person is a tyrant, worse than King George III!

2.Notice that the majority emphasizes that Phelps' speech, no matter how crude and provocative, is at the core of the First Amendment because it is speech about matters of public concern that takes place in a traditional public forum. Since the tort liability turns "on the content and viewpoint of the message conveyed", it triggers the compelling interest test.

3.Once again, notice how the law requires the unwilling listener or viewer to "avoid further bombardment of [his] sensibilities simply by averting [his] eyes."  Compare this approach to the Snyders with the, perhaps, overly protective concern of the Endorsement Test for passersby offended by a Nativity display in a public park.

4. Alito dissents eloquently and says that our "profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." On the other hand, always keep in mind that the Free Speech Clause is most necessary when the speech is most unpopular. We would all like to stop the Nazis from marching in Skokie, Illinois (a city with a large Jewish population, many of whom survived the Holocaust), but the First Amendment protects even the Nazis and their right to express even hateful messages.

5. If you followed the Prop 8 controversy in California, you probably heard of the angry protests that took place outside churches that were supporting Prop 8. Picketing with signs proclaiming "HOMOPHOBE" and "haters" and worst. (See link). This kind of "uninhibited, robust, and wide-open" expression is protected by the First Amendment because we believe in free and open debate on issues of public concern. 

Wednesday, April 02, 2014

Great Debate Tomorrow on 20 Week "Fetal Pain" Laws

20 Week Abortion Bans: Humane Public Policy or Threat to Women’s Health and Rights  featuring Senator Danielle Conrad & Professor Teresa Collett.

Wednesday, April 2nd, 12:00 – 1:00 pm in the Auditorium 

Senator Conrad and Professor Collett will discuss the constitutional implications of 20 week abortion bans.  Also, the speakers will discuss the public policy concerns and other legal issues regarding these laws. Senator Conrad will also discuss the current legal landscape in Nebraska and the current lows on this topic.

Professor Teresa Collett is a faculty member at the University of St. Thomas School of Law. Professor Collett currently serves as Special Attorney General for the State of Oklahoma and previously served as Special Attorney General for the State of Kansas. In 2009, Pope Benedict XVI appointed Professor Collett to a five year term on the Pontifical Council for the Family. Senator Danielle Conrad is a 2003 alumnus of the University of Nebraska College of Law.  She is in her eighth year serving in the Nebraska Legislature, representing District 46 in Lincoln. 

Tuesday, April 01, 2014

McMullen v. Coakley

Just skim through the 2d Circuit's opinion. I just want you to be aware that this case is currently before the Supreme Court and should be decided soon. Here is a blog post on the case from SCOTUS blog:

Free speech and abortion rights collide: In Plain English

Tomorrow, the Court will hear the case of Eleanor McCullen, a seventy-seven-year-old Massachusetts grandmother who has spent over fifty thousand dollars of her own money to help pregnant women who decide not to get an abortion.  All McCullen wants, she tells the Court, is to stand on a public sidewalk to provide information and offer help to women entering an abortion clinic, but a state law prohibits her from doing so.  Based on the Court’s past track record on First Amendment cases, she may well soon get that chance.  Let’s talk about McCullen v. Coakley in Plain English.
Federal laws provide some protection for women seeking access to abortion clinics.  But some states have gone farther and enacted their own laws intended to provide women with additional protection.  In 2000, in a case called Hill v. Colorado, the Court upheld a Colorado law which drew a line one hundred feet around health care facilities and made it illegal for anti-abortion protesters to go within eight feet of anyone within that buffer zone to counsel, educate, or protest.
The law, the Court reasoned, struck the right balance between protecting the clinic’s patients from unwanted attention and the need to allow protesters to protest.
At the oral argument tomorrow, the Court will be considering a challenge by McCullen and other anti-abortion protesters to a Massachusetts law that makes it a crime to “enter or remain on a public way or sidewalk” within thirty-five feet of the entrance, exit, or driveway of an abortion clinic.  The law carves out an exception, however, for employees of the clinic.  McCullen argues that, by creating such an exception, the Massachusetts law — unlike the law at issue in Hill — discriminates based on the views of the person who is speaking:  employees of the clinic can go into the buffer zone and say anything related to their jobs, but protesters cannot.  In fact, McCullen emphasizes, the law even applies to conduct that is “entirely peaceful,” like prayer or holding an anti-abortion sign.  Another problem, McCullen points out, is that she and her fellow protesters don’t have any real alternatives to get their message across at some clinics.  Shouting at women within the buffer zone from thirty-five feet away doesn’t work, but on the other hand it is difficult for her to talk to women outside the buffer zone because it’s hard to tell who is going to the clinic and who is just walking down the sidewalk.  Finally, she suggests, if the Court were to uphold the Massachusetts law based on its ruling in Hill, the Court should simply overrule that decision.
Massachusetts paints a very different picture in its brief, which it begins by listing examples of conduct by (mostly) anti-abortion protesters that led the Massachusetts legislature to first pass a law modeled on the one upheld by the Court in Hill.  But, the state explains, that law ultimately proved both ineffective at maintaining safe access to the clinics and difficult for police to enforce – prompting the legislature to adopt the law at issue in this case.  The new law, the state continues, is intended to keep clinic entrances “open and clear of all but essential foot traffic, in light of more than two decades of compromised facility access and public safety.”  With this goal in mind, the law doesn’t “directly regulate speech” and instead only targets conduct.  Moreover, the state argues, the legislature didn’t adopt the law because it “disagreed with any underlying message”; it notes that not all of the protesters whose actions it is trying to regulate opposed abortion.
Addressing some of McCullen’s other arguments, the state contends that it doesn’t matter that the law only applies to abortion clinics, because those were the only places where the problems occurred.  Nor does it matter that the law doesn’t apply to clinic employees:  the law needed to have some kind of exemption for the people who were going in and out of the clinics, because otherwise they too would violate the law whenever they set foot in the buffer zone.  And the law still “limits” the conduct of clinic employees, allowing them to “get on with their jobs” but nothing more.  Finally, the state emphasizes that the thirty-five-foot buffer zone was a solution that it reached after extensive trial and error, and that it was the only solution that would provide safe access to clinics while still allowing protesters to express their views.
How is this going to play out tomorrow?  The Court decided Hill by a vote of six to three, but that was over thirteen years ago, and it’s now a very different Court.  The only Justices left on the Court from the Hill majority are Justices Ginsburg and Breyer; two of the others – Sandra Day O’Connor and the late Chief Justice William Rehnquist – have been replaced by the more conservative Justice Samuel A. Alito and Chief Justice John Roberts, respectively.  By contrast, all three of the dissenting Justices from Hill (Thomas, Scalia, and Kennedy) remain on the Court, and we have no reason to think that their views have changed.  So even if you assume that Justices Sotomayor and Kagan will vote to uphold the law, the state would still need a fifth Justice to prevail, and that vote could be hard to find.  Throw in that the Roberts Court has yet to meet any controversial speech that it isn’t willing to allow – whether you are talking about movies showing animal cruelty, selling violent video games to children, protests at the funeral of a fallen soldier, or lying about receiving the Medal of Honor – and the Massachusetts law could be in jeopardy.  Stay tuned . . . .we will be back to report on the oral argument in Plain English as well.

Monday, March 31, 2014

Class Schedule

Due to our 85-minute class schedule, we are required to cancel 3 classes this semester:

Here are the cancellations:

1. Thursday March 5
2. Friday March 6
3. Thursday April10

Public Forum Doctrine

Imagine 3 policies restricting speech in Holmes park:

1. A policy prohibiting all "abortion related" speech in Holmes Park.

2. A policy prohibiting all speech "opposing legal abortion" in Holmes park.

3. A policy prohibiting all loud speech above certain decibles in Holmes park.

How does the test for speech in a traditional public forum (see p.1332) apply in each of these cases?

Here is the Court's test:

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

The quote is from Perry Education Assn., 460 U.S. at 45 (citations omitted) (bold emphasis added).

Sunday, March 30, 2014

Colorado Christian University Case and Davey

Does Locke v. Davey control the free exercise issue in this case?

  • Is the burden on free exercise in this case the same as in Davey?
  • Does it matter that the program in CCU "expressly discriminates among religions" by allowing scholarships to be used at "sectarian" religious colleges (such as the Catholic and Methodist colleges that were eligible under the program) but not at "pervasively sectarian" colleges (such as CCU and the Buddhist College excluded under the program)"?
  • Do you agree with Judge McConnell when he says "Locke involved neither discrimination among religions nor intrusive determinations regarding contested religious questions." (p. 18)
  • Are these issues Free Exercise issues, EC issues, or both? Even if both FEC and EC require denominational neutrality, the burden requirement may be different under the two clauses. In other words, the FEC under Davey is not implicated by minor burdens on free exercise, but denominational inequality under the EC may not require any burden at all under the Court's EC jurisprudence (there is that structural incorporation issue rearing its head again!)

Colorado Christian University Case

Facts (from the opinion):

The State of Colorado provides scholarships to eligible students who attend any accredited college in the state-public or private, secular or religious-other than those the state deems “pervasively sectarian.” To determine whether a school is “pervasively sectarian,” state officials are directed, among other things, to examine whether the policies enacted by school trustees adhere too closely to religious doctrine, whether all students and faculty share a single “religious persuasion,” and whether the contents of college theology courses tend to “indoctrinate.” Applying these criteria, state officials have extended scholarships to students attending a Methodist university and a Roman Catholic university run by the Jesuit order. They have refused scholarships to otherwise eligible students attending a non-denominational evangelical Protestant university and a Buddhist university. Colorado Christian University, one of the two schools held pervasively sectarian by the State, contends that excluding its students on the basis of this inquiry violates the First and Fourteenth Amendments. The district court disagreed, and granted summary judgment in favor of the state defendants. We find the exclusion unconstitutional for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice. We reverse, and order that summary judgment be granted in favor of the university.

Here are some questions:

1. Does this exclusion violate the Free Exercise Clause? How does Locke v. Davey affect this issue?

2. Would the EC permit CCU to be included in the scholarship program?

3. Does the exclusion of "pervasively sectarian" colleges from an otherwise general program violate the EC? Why or why not?

4. Do you think the 10th Circuit has correctly applied the Supreme Court Free Ex and EC caselaw?

CCU Case: Some Key Passages

I. Definition of Pervasively Sectarian:

"(1) An institution of higher education shall be deemed not to be pervasively *1251 sectarian if it meets the following criteria:

(a) The faculty and students are not exclusively of one religious persuasion.

(b) There is no required attendance at religious convocations or services.

(c) There is a strong commitment to principles of academic freedom.

(d) There are no required courses in religion or theology that tend to indoctrinate or proselytize.

(e) The governing board does not reflect nor is the membership limited to persons of any particular religion.

(f) Funds do not come primarily or predominantly from sources advocating a particular religion."

II. Colorado's Finding That CCU is Pervasivley Sectarian:

"The Commission concluded that CCU failed to meet at least three of the criteria. After examining the syllabi for the theology courses, the commission decided that the courses impermissibly “tend[ed] to indoctrinate or proselytize.” Colo.Rev.Stat. § 23-3.5-105(d). It also concluded that CCU's board of trustees reflected or was limited to a single religion. Id. § 23-3.5-105(e). This was predicated on the judgment that Christianity constitutes a single religion, without regard to denominational differences. Commission officials disagreed among themselves as to whether the university's statement of faith was consistent with a “commitment to principles of academic freedom.” Id. § 23-3.5-105(c). Finally, the commission concluded that because of the chapel attendance required for some of its students, the university impermissibly “required attendance at religious convocations or services.” Id. § 23-3.5-105(b)."

III. The Court's View of Locke v. Davey:

"The opinion thus suggests, even if it does not hold, that the State's latitude to discriminate against religion is confined to certain “historic and substantial state interest[s],” id. at 725, 124 S.Ct. 1307, and does not extend to the wholesale exclusion of religious institutions and their students from otherwise neutral and generally available government support. The Court's language suggests the need for balancing interests: its holding that “minor burden[s]” and “milder” forms of “disfavor”*1256 are tolerable in service of “historic and substantial state interest[s]” implies that major burdens and categorical exclusions from public benefits might not be permitted in service of lesser or less long-established governmental ends. Id. at 720, 725, 124 S.Ct. 1307.

We need not decide in this case whether such a balancing test is necessary or how it would be conducted, however, because the Colorado exclusion, in addition to imposing a far greater burden on affected students, has two features that were not present in Locke and that offend longstanding constitutional principles: the Colorado exclusion expressly discriminates among religions, allowing aid to “sectarian” but not “pervasively sectarian” institutions, and it does so on the basis of criteria that entail intrusive governmental judgments regarding matters of religious belief and practice. See Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (imposing strict scrutiny on governmental decisions that discriminate among religions); NLRB v. Catholic Bishop, 440 U.S. 490, 502-03, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) (discussing limitations on the power of the government to base decisions on intrusive questions regarding religious belief or practice).

Locke involved neither discrimination among religions nor intrusive determinations regarding contested religious questions. The scholarship program at issue in Locke excluded all devotional theology majors equally-without regard to how “sectarian” state officials perceived them to be-and therefore did not discriminate among or within religions. Locke, 540 U.S. at 715-16, 124 S.Ct. 1307. Evangelicals and Unitarians, Catholics and Orthodox Jews, narrow sectarians and freewheeling latitudinarians, all were under the same interdiction. And since under the program “[t]he institution, rather than the State, determine[d] whether the student's major [was] devotional,” the State did not engage in intrusive religious inquiry. Id. at 717, 124 S.Ct. 1307.

We therefore reject the argument of the state defendants and their amici that Locke compels affirmance in this case. Although Locke precludes any sweeping argument that the State may never take the religious character of an activity into consideration when deciding whether to extend public funding, the decision does not imply that states are free to discriminate in funding against religious institutions however they wish, subject only to a rational basis test."

IV. Denominational Discrimination:

"From the beginning, this nation's conception of religious liberty included, at a minimum, the equal treatment of all religious faiths without discrimination or preference."

"Many Supreme Court decisions have confirmed the principle. The Court has called neutral treatment of religions “[t]he clearest command of the Establishment Clause.” Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982); see also Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 707, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (“It is clear that neutrality as among religions must be honored.”). Such discrimination is forbidden by the Free Exercise Clause as well. Larson, 456 U.S. at 245, 102 S.Ct. 1673 (“This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause”); see also Lukumi, 508 U.S. at 532-33, 113 S.Ct. 2217; Larson, 456 U.S. at 246, 102 S.Ct. 1673 (citing Abington School District v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Goldberg J., concurring)). The Court has suggested that the Equal Protection Clause's requirement is parallel. See Locke v. Davey, 540 U.S. at 720 n. 3, 124 S.Ct. 1307 (citing Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978)). In other words, “no State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’ ” Larson, 456 U.S. at 246, 102 S.Ct. 1673 (quoting Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947)). While CCU raises claims under three different constitutional clauses governing religious discrimination, *1258 all of them draw on these common principles. So while the Establishment Clause frames much of our inquiry, the requirements of the Free Exercise Clause and Equal Protection Clause proceed along similar lines."

"By giving scholarship money to students who attend sectarian-but not “pervasively” sectarian-universities,FN5 Colorado necessarily and explicitly discriminates among religious institutions, extending scholarships to students at some religious institutions, but not those deemed too thoroughly “sectarian” by governmental officials. The sole function and purpose of the challenged provisions of Colorado law, Colo.Rev.Stat. §§ 23-3.5-105, 23-3.3-101(3)(d), and 23-3.7-104, is to exclude some but not all religious institutions on the basis of the stated criteria. Employing those criteria, the state defendants have decided to allow students at Regis University, a Roman Catholic institution run by the Society of Jesus, and the University of Denver, a Methodist institution, to receive state scholarships, but not students at CCU or Naropa University, a Buddhist institution. This is discrimination “on the basis of religious views or religious status,” Smith, 494 U.S. at 877, 110 S.Ct. 1595, and is subject to heightened constitutional scrutiny."

"The Colorado law seems even more problematic than the Minnesota law invalidated in Larson. The Minnesota law at least was framed in terms of secular considerations: how much money was raised internally and how much from outsiders to the institution. Here, the discrimination is expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations, as defined by such things as the content of its curriculum and the religious composition of its governing board. Although application of secular criteria does not invalidate a law even if there is a disparate impact, see Children's Healthcare Is A Legal Duty, Inc., v. Min De Parle, 212 F.3d 1084, 1092 (8th Cir.2000), that logic will not save a law that discriminates among religious institutions on the basis of the pervasiveness or intensity of their belief."

V. Entanglement:

"Even assuming that it might, in some circumstances, be permissible for states to pick and choose among eligible religious institutions, a second line of Supreme Court precedents precludes their doing so on the basis of intrusive judgments regarding contested questions of religious belief or practice. As stated by the Court in Mitchell v. Helms: “[T]he inquiry into the recipient's religious views required by a focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person's or institution's religious beliefs.” 530 U.S. at 828, 120 S.Ct. 2530 (citing Smith, 494 U.S. at 887, 110 S.Ct. 1595); Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 414 n. 2 (8th Cir.2007) (joined by O'Connor, J.) (same); see also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) (“It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.”); Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341-42 (D.C.Cir.2002) (same).
[17] Headnote Citing References Most often, this principle has been expressed in terms of a prohibition of “excessive entanglement” between religion and government. See, e.g., Agostini v. Felton, 521 U.S. 203, 232-35, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); NLRB v. Catholic Bishop, 440 U.S. at 499, 502, 99 S.Ct. 1313. The anti-entanglement rule originated in the context of education, changing with re-interpretations of the famous doctrine of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), although it has migrated to other contexts. See, e.g., Rweyemamu v. Cote, 520 F.3d 198, 208-09 (2d Cir.2008) (Title VII of the Civil Rights Act unconstitutional as applied to ordained priest); Schleicher v. Salvation Army, 518 F.3d 472, 474, 477-78 (7th Cir.2008) (Fair Labor Standards Act presumptively excepts “clerical personnel”). At first the prohibition on entanglements was formulated as an independent requirement of the Establishment Clause, later as one element of determining the “effect” of the law in advancing or inhibiting religion. Agostini, 521 U.S. at 232-33, 117 S.Ct. 1997; see also Zelman v. Simmons-Harris, 536 U.S. 639, 668-69, 122 S.Ct. 2460, 153 L.Ed.2d 604 (O'Connor, J., concurring) (discussing history of the “entanglement inquiry.”). Properly understood, the doctrine protects religious institutions from governmental monitoring or second-guessing of their religious beliefs and practices, whether as a condition to receiving benefits (as in Lemon ) or as a basis for regulation or exclusion from benefits (as here). See Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 Wash. & Lee L.Rev. 347, 397 (1984).

The Colorado provisions challenged here are fraught with entanglement problems. The most potentially intrusive element of the Colorado statute is the criterion requiring Commission staff to decide whether any theology courses required by the university “tend to indoctrinate or proselytize.” Colo.Rev.Stat. § 23-3.5-105(1)(d). To apply this criterion, the Commission demanded to see syllabi from theology courses at CCU. The record contains two syllabi for “Early Christian Literature,” a course studying “the New Testament as literature.” App. 273. In these courses, the students are asked, for example, to give “big ideas” of all of the books of the New Testament, and “explain how the differences in the various gospels reflect the different theological concerns of the various*1262 writers.” App. 279, 284. The Commission concluded that the course failed the statutory criterion, although it did not explain why. All we know is that one official defined the term “indoctrinate” to mean “to try and convince, to try and convert, to try and get individuals to subscribe to a particular set-to whatever the subject is, in this case, a theological subject or religious subject,” and “proselytize” to mean “to evangelicize (sic), to do more than just educate but to advocate that an individual subscribe to a certain theological point or religious point.” App. 102-03, ¶ 79. To decide that these syllabi were likely “to convince” the students of religious truths, the Commission had to decide how religious beliefs are derived and to discern the boundary between religious faith and academic theological beliefs.

Such inquiries have long been condemned by the Supreme Court. In New York v. Cathedral Academy, 434 U.S. 125, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977), for example, the Supreme Court considered a state statute that reimbursed private religious schools for the costs of in-class examinations and other state-mandated teaching activities only if they were devoid of religious content. The Court held the process of examining the schools' teaching practices for religious content unconstitutional, explaining that “this sort of detailed inquiry into the subtle implications of in-class examinations and other teaching activities would itself constitute a significant encroachment on the protections of the First and Fourteenth Amendments.” Id. at 132, 98 S.Ct. 340. The Court pointed out that “[i]n order to prove their claims for reimbursement, sectarian schools would be placed in the position of trying to disprove any religious content in various classroom materials” and the court “would be cast in the role of arbiter of the essentially religious dispute.” Id. at 132-33, 98 S.Ct. 340. The Court concluded, in words equally applicable to the Colorado statute: “The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment.” Id. at 133, 98 S.Ct. 340.

More recently, in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), the Court rejected the argument, put forth by the dissent, that a public university must refrain from extending the benefits of a neutral subsidy to a student publication that contained religious “indoctrination” and “evangelis[m],” as opposed to “descriptive examination of religious doctrine.” Id. at 867, 876, 877, 115 S.Ct. 2510 (Souter, J., dissenting) (internal quotation marks omitted). That proposal is similar to the line drawn by the Colorado statute. The majority rejected this idea, noting that “it would require the University ... to scrutinize the content of student speech, lest the expression in question ... contain too great a religious content.” Id. at 844, 115 S.Ct. 2510. “That eventuality,” the Court stated, “raises the specter of governmental censorship,” which “would be far more inconsistent with the Establishment Clauses's dictates than would governmental provision of [assistance] on a religion-blind basis.” Id. at 844-45, 115 S.Ct. 2510.

[18] Headnote Citing References The same “specter of government censorship” is present in this case, except that it has actually materialized. Commission officials testified that they demanded to see CCU's religious education curriculum, and (for reasons known only to themselves) determined that it “tend[ed] to indoctrinate or proselytize.” App. 103 ¶ 79. The line drawn by the Colorado statute, between “indoctrination” and mere education, is highly subjective and susceptible to abuse. Educators impart information and perspectives to students because they *1263 regard them as true or valuable. Whether an outsider will deem their efforts to be “indoctrination” or mere “education” depends as much on the observer's point of view as on any objective evaluation of the educational activity. Anyone familiar with the varied reactions to the New York Times and FOX News knows how often assessments of objectivity and bias depend on the eye of the beholder. Many courses in secular universities are regarded by their critics as excessively indoctrinating, and are as vehemently defended by those who think the content is beneficial. Such disagreements are to be expected in a diverse society. But when the beholder is the State, what is beheld is the exercise of religion, and what is at stake is the right of students to receive the equal benefits of public support for higher education, the Constitution interposes its protection. The First Amendment does not permit government officials to sit as judges of the “indoctrination” quotient of theology classes."