Originalism vs Living Constitution: My Lecture

 

In case you are interested, here is a video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:

Duncan Originalism vs Living Constitution:

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

 I share it just in case you are interested in learning about the Great Debate about how to read the Constitution. And here are two good short articles on originalism vs the Living Constitution:

 

Strauss article (link); Sollum Article (link) 

 

 Finally, here is a quotation from Justice Gorsuch to the NYT (link) on his view of originalism:

     So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.

It seems clear that he duty of a court is to follow the written law (as opposed to amending the written law).

Louisiana Law Requires Display of Ten Commandments in Public Schoola

 Here is a short article explaining the law: 

And here is a quotation from the article:

"The legislation requires that by January 1, 2025, all K-12 public schools, charter schools, and state post-secondary institutions place in their classrooms a poster-size copy of the Ten Commandments (“10Cs”). The 10Cs are to be displayed along with a three-paragraph “context statement” situating the commandments as part of the American educational experience for almost three centuries."

 Is this new law constitutional under the current Supreme Court test for the Establishment Clause?

 

From AP:

New Texas law will require Ten Commandments to be posted in every public school classroom

By  JIM VERTUNO

Updated 7:16 PM CDT, June 21, 2025

AUSTIN, Texas (AP) — Texas will require all public school classrooms to display the Ten Commandments under a new law that will make the state the nation’s largest to attempt to impose such a mandate.

Gov. Greg Abbott announced Saturday that he signed the bill, which is expected to draw a legal challenge from critics who consider it an unconstitutional violation of the separation of church and state.

A similar law in Louisiana was blocked when a federal appeals court ruled Friday that it was unconstitutional. Arkansas also has a similar law that has been challenged in federal court.

The Texas measure easily passed in the Republican-controlled state House and Senate in the legislative session that ended June 2.

“The focus of this bill is to look at what is historically important to our nation educationally and judicially,” Republican state representative Candy Noble, a co-sponsor of the bill, said when it passed the House.

 

From Religion Clause blog: 

 Suit Challenges Texas Requirement for 10 Commandments in Classrooms 

Suit was filed last week in a Texas federal district court challenging the constitutionality of a recently enacted Texas law that requires the display of the Ten Commandments in every public-school classroom. The complaint (full text) in Alexander v. Morath, (ND TX, filed 6/24/2025) alleges in part:

Senate Bill 10 ... is not religiously neutral, as it mandates the display of a specific version of the Ten Commandments in every public-school classroom. This requirement inherently takes a theological stance on the correct content and meaning of the scripture....

The version mandated by S.B. 10 mostly aligns with a Protestant rendition but does not match any version found in the Jewish tradition, notably omitting key language and context from the Torah. Furthermore, it does not match the version followed by most Catholics, as it includes a prohibition against "graven images" which could be offensive given the role of iconography in the Catholic faith....

84. As a result of the Ten Commandments displays mandated by S.B. 10, Texas students—including minor-child Plaintiffs—will be unconstitutionally coerced into religious observance, veneration, and adoption of the state’s favored religious scripture, and they will be pressured to suppress their personal religious beliefs and practices, especially in school, to avoid the potential disfavor, reproach, and/or disapproval of school officials and/or their peers. ...

85. In addition, by mandating that one version of the Ten Commandments be displayed in public educational institutions and prescribing an official religious text for school children to venerate, S.B. 10 adopts an official position on religious matters, violating the Establishment Clause’s prohibition against taking sides in questions over theological doctrine and violating the “clearest command” of the Establishment Clause that “one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).

86. There is no longstanding historical practice or tradition of prominently and permanently displaying any version of the Ten Commandments in American public-school classrooms. On the contrary, the Supreme Court unambiguously held in Stone that such a practice is proscribed by the Constitution.

Texas Tribune reports on the lawsuit.

Why Religious Liberty is Foundational in a Free Society

 Here is a link to Mark Rienzi's (of Becket) powerful statement:

link 

 

Kennedy v. Bremerton

 Justice Gorsuch's majority opinion provides a great executive summary of the facts and holding:

Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.

 The School believed the Establishment Clause required it to fire Coach Kennedy for praying on the field after the game because a "reasonable observer," who observed him praying, might mistakenly believe that the school was endorsing his prayer. Is it reasonable to jump to this conclusion? "[T]he District appealed to what it called a 'direct tension between' the “Establishment Clause” and 'a school employee’s [right to] free[ly] exercise' his religion.  To resolve that 'tension,' the District explained, an employee’s free exercise rights 'must yield so far as necessary to avoid school endorsement of religious activities.'”

"The District thus made clear that the only option it would offer Mr. Kennedy was to allow him to pray after a game in a 'private location' behind closed doors and 'not observable to students or the public.'"

Suppose an African-American coach took a knee during the national anthem in support of Black Lives Matter. Would he have been disciplined by the school? 

Were other coaches allowed to engage in free expression on the field for a brief time following games? 

What about a teacher who displays a Pride flag in her classroom? Permitted?

Basically, the school targeted Coach Kennedy's speech because it reflected his religious beliefs. This is a viewpoint based restriction of speech under the Free Speech Clause and a target of religious exercise under the Free Exercise Clause.

Once the plaintiff establishes a free exercise claim, here is what happens:

Under this Court’s precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” Should a plaintiff make a showing like that, this Court will find a First Amendment violation unless the government can satisfy “strict scrutiny” by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.

 The free speech issue is a little more complicated for a government employee and the Court applies a version of intermediate scrutiny. The Court says it need not decide which standard of review applies in this case, because the school district "cannot sustain its burden under any of them." 

How did the school district attempt to justify singling out Coach Kennedy's religious expression for disciplinary treatment?

It relied on the Lemon test and the fear that a reasonable observer would mistakenly view Kennedy's personal prayer as an endorsement of religion by the school. Basically, the school is saying that the EC trumps the FEC and requires the school to censor Kennedy's personal prayer on the field.

Here is what the Court says about the future of the Lemon test: 

What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. The Court has explained that these tests “invited chaos” in lower courts, led to “differing results” in materially identical cases, and created a “minefield” for legislators.  This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “ ‘perceptions’ ” or “ ‘discomfort.’ ” An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Nor does the Clause “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.”

The Court overrules Lemon and replaces it with the following test:

 In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “ ‘reference to historical practices and understandings.’ ” An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “ ‘exception’ ” within the “Court’s Establishment Clause jurisprudence.”

Now consider the Court's conclusions:

In the end, the District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties—and then develop some explanation why one of these Clauses in the First Amendment should “ ‘trum[p]’ ” the other two. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee  over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.

  Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress  religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his First Amendment claims. The judgment of the Court of Appeals is Reversed.

 

Notice Justice Sotomayor's dissent mourning the demise of the wall of separation:

 The Court overrules Lemon v. Kurtzman (1971), and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent. . . .

 Which decisions are vulnerable under the Court's new test (actually not so much new as one based upon history, tradition and original understanding)?

What about a state law requiring the national motto--In God We Trust--to be prominently posted in every public K-12 classroom? Compare the Lemon test with the Kennedy test.

What about voluntary school prayer or Bible reading laws? How would Engel and Santa Fe come out under the Kennedy test?

Kennedy as the Lens Through Which to View All EC Jurisprudence

 Remember, the Lemon/Endorsement test is no more, and the Court has replaced it with the Kennedy Test:

 In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “ ‘reference to historical practices and understandings.’ ” An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “ ‘exception’ ” within the “Court’s Establishment Clause jurisprudence.”

As we read cases such as American Legion, Chambers, and Town of Greece we will see this test at work. The test already existed in legislative prayer and passive display cases, and now in Kennedy the test has been generalized as the test for all EC cases. Kennedy is a landmark case, it is now the case to look to when analyzing all issues arising under the EC.

Does Stone v. Graham Survive Kennedy?

 

Stone v. Graham, 449 U.S. 39 (1980)

From Oyez website:

Facts of the case

Sydell Stone and a number of other parents challenged a Kentucky state law that required the posting of a copy of the Ten Commandments in each public school classroom. They filed a claim against James Graham, the superintendent of public schools in Kentucky.

Question

Did the Kentucky statute violate the Establishment Clause of the First Amendment?

Holding

In a 5-to-4 per curiam decision, the Court ruled that the Kentucky law violated the first part of the test established in Lemon v. Kurtzman, and thus violated the Establishment Clause of the Constitution. The Court found that the requirement that the Ten Commandments be posted "had no secular legislative purpose" and was "plainly religious in nature." The Court noted that the Commandments did not confine themselves to arguably secular matters (such as murder, stealing, etc.), but rather concerned matters such as the worship of God and the observance of the Sabbath Day.

 

How should the new Louisiana Ten Commandments law be decided?

Prof. Kavanaugh's Black Letter EC Formulation

 As we leave the Establishment Clause behind, you should keep in my Justice ("Professor") Kavanaugh's summary of the current EC doctrine from his concurrence in American Legion:

"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in  history and tradition; or (ii) treats religious people, organizations, speech, or activity equally   to  comparable  secular  people,  organizations,  speech,  or  activity;  or  (iii) represents  a   permissible  legislative  accommodation  or  exemption  from  a  generally applicable law, then  there ordinarily is no Establishment Clause violation. The   practice   of   displaying   religious   memorials,   particularly   religious   war  memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ."

Little v Llano County: Fifth Circuit rejects Free Speech claim regarding public library's removal of books

 Little v. Llano County Link

 

Money quotation:

We consider whether someone may challenge a public library’s removal of books as violating the Free Speech Clause. Patrons of a county library in Texas sued the librarian and other officials, alleging they removed 17 books because of their treatment of racial and sexual themes. The district court ruled that defendants abridged plaintiffs’ “right to receive information” under the Free Speech Clause and ordered the books returned to the shelves. On appeal, a divided panel of our court affirmed in part. We granted en banc rehearing.   We now reverse the preliminary injunction and render judgment dismissing the Free Speech claims. We do so for two separate reasons. First, plaintiffs cannot invoke a right to receive information to challenge a library’s removal of books. Yes, Supreme Court precedent sometimes protects one’s right to receive someone else’s speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.

 

Do you agree with the Fifth Circuit's opinion? 

Vice President Vance on American Exceptionalism and Protecting Democracy

 Vance's speech to European leaders in February 2025:

 

For years, we’ve been told that everything we fund and support is in the name of our shared democratic values.

Everything—from our Ukraine policy to digital censorship—is billed as a defense of democracy.

But when we see European courts canceling elections, and senior officials threatening to cancel others, we ought to ask whether we’re holding ourselves to an appropriately high standard.

And I say “ourselves” because I fundamentally believe that we are on the same team. We must do more than talk about democratic values. We must live them.

Within living memory of many of you in this room, the Cold War positioned defenders of democracy against tyrannical forces on this continent.

Consider the side in that fight that censored dissidents, closed churches, and canceled elections. Were they the good guys?

Certainly not. And thank God they lost the Cold War. They lost because they neither valued nor respected all of the extraordinary blessings of liberty—the freedom to surprise, to make mistakes, to invent, to build.

As it turns out, you can’t mandate innovation or creativity, just as you can’t force people what to think, what to feel, or what to believe.

We believe those things are certainly connected. Unfortunately, when I look at Europe today, it’s sometimes not so clear what happened to some of the Cold War’s winners. I look to Brussels, where EU commissars warn citizens that they intend to shut down social media during times of civil unrest, the moment they spot what they’ve judged to be “hateful content.”

Or to this very country, where police have carried out raids against citizens suspected of posting anti-feminist comments online, as part of "Combating Misogyny on the Internet: A Day of Action."

I look to Sweden, where two weeks ago, the government convicted a Christian activist for participating in Quran burnings that resulted in his friend’s murder. And as the judge in his case chillingly noted, Sweden’s laws to supposedly protect free expression do not, in fact, grant a free pass to do or say anything without risking offending the group that holds that belief.

And perhaps most concerningly, I look to our very dear friends, the United Kingdom, where the backslide away from conscience rights has placed the basic liberties of religious Britain in the crosshairs.

A little over two years ago, the British government charged Adam Smith-Connor, a 51-year-old physiotherapist and army veteran, with the heinous crime of standing 50 meters from an abortion clinic and silently praying for three minutes.

Not obstructing anyone. Not interacting with anyone. Just silently praying on his own. After British law enforcement spotted him and demanded to know what he was praying for, Adam replied simply: “It was on behalf of the unborn son he and his former girlfriend had aborted years before.”

Now, the officers were not moved.

Adam was found guilty of breaking the government’s new “buffer zone” law, which criminalizes silent prayer and other actions that could influence a person’s decision within 200 meters of an abortion facility.

He was sentenced to pay thousands of pounds in legal costs to the prosecution.

Now, I wish I could say that this was a fluke—a one-off crazy example of a badly written law being enacted against a single person.

But no.

This last October, just a few months ago, the Scottish government began distributing letters to citizens whose houses lay within so-called Safe Access Zones, warning them that even private prayer within their own homes may amount to breaking the law.

Naturally, the government urged readers to report any fellow citizen suspected guilty of thought crime.

In Britain and across Europe, free speech, I fear, is in retreat.

And in the interest of comity, my friends, but also in the interest of truth, I will admit that sometimes the loudest voices for censorship have come not from within Europe, but from within my own country, where the prior administration threatened and bullied social media companies to censor so-called misinformation.

Misinformation like, for example, the idea that coronavirus had likely leaked from a laboratory in China.

Our own government encouraged private companies to silence people who dared to utter what turned out to be an obvious truth.

So, I come here today not just with an observation, but with an offer.

And just as the Biden administration seemed desperate to silence people for speaking their minds, so the Trump administration will do precisely the opposite.

And I hope that we can work together on that.

Birthright Citizenship: Two Views

 Link

 Trump Might Have a Case on Birthright Citizenship (By Randy E. Barnett and Ilan Wurman):

 NYT Opinion Page

Ten Commandments in Public Schools

 A number of years ago, Christianity Today published a cartoon showing two public school officials watching students walk through a metal detector. One of them says to the other: "It's the latest in school safety devices. That light and horn go off if a student tries to smuggle in a gun, a knife, a bomb, or a copy of the ten commandments." --Phillip Ryken describing a Dick Wright cartoon in Christianity Today (March 11, 2002) p. 15.

Nellie Bowles of the Free Press on Thanksgiving This Year

 "I'm thankful this year for the First Amendment. I never understood how precious it was, or how rare, but watching European countries send cops to people's houses for barely controversial Facebook posts has shocked me." 

Not to mention people being arrested in the UK for silently praying on the sidewalks in front of abortion clinics. Silently praying is a thought crime in Great Britain!

Bowles is right. American exceptionalism is real and free speech is one of the most important features of American exceptionalism. But even here, the First Amendment is under attack by elites who are shocked to learn that not everyone believes what they believe. 

But we have a Supreme Court whose First Amendment jurisprudence is the strongest sign of American exceptionalism. So I am also thankful this year for the First Amendment, and for the Court that supports and defends it.

Optional Exam Review Session: Monday December 2

 I plan to hold an optional exam review session on Monday December 2 during our regular class time and place. Our exam is December 9, so December 2 is the best date for this session. 

And remember what I told you in class--the exam will not cover the last materials we discussed on pornography and obscenity under the First Amendment. The law is too vague to hold you responsible for and I have no desire to write a question describing in detail material challenged as obscene.

A Closing Thought

 I really enjoyed teaching First Amendment this semester. We learned a lot, had a lot of fun, and, I hope, came to understand why the First Amendment is the first freedom. I want to leave you with a quotation about freedom from President Reagan, the second favorite president of my lifetime:

“Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.” 

I think, just maybe, I won't have to spend my sunset years telling my grandchildren that America was once the land of the free and the home of the brave. It still is, and I pray it will always be.

Good luck on the exams, and I hope I will see some of you next Fall in the Con Law Seminar.

Exam Info

The Exam consists of 3 essay questions, one of medium length (1000 words or less answer), one of 750 words or less, and one of 500 words or less. 

Here are the Exam  Instructions:

 

 Final Examination                                          Examination No.________
December 9, 2024
Three (3) Hours

Examplify Mode: Secure    

PLEASE CHECK TO BE SURE
EXAMINATION IS COMPLETE.    THIS EXAMINATION HAS 4 PAGES.

INSTRUCTIONS


1.    You must complete this examination using Examplify in the secure mode. Using the wrong Examplify mode is an Honor Code violation.

2.    If you experience computer problems, you will not be given more time to complete the exam. You should switch to writing in Green Books and work with the exam administration personnel when you have completed your exam. You may contact exam administration personnel to try to resolve the computer problem during the exam, but you will not be given more time to complete the exam.
3.    Write your exam number in the space provided above.
4.    It is an Honor Code violation to write beyond the time limit designated above.
5.    This is a 3 hour closed book/closed network examination. You may not have any written or printed materials with you while taking the examination nor may you consult any written or printed materials before turning in all portions of the examination.

   No cell phones or other electronics, other than the laptop you are taking this exam on, are allowed in this exam room.

6.    This examination will count for 225 points.

7.    Limit the length of your answers as specified in each question. Writing beyond the word limits will adversely affect your score for that question.
8.    You must return the exam questions and all used scratch paper, however nothing written on this exam or on any scratch paper will be graded.
9.    Confidentiality: It is an Honor Code violation to share these exam questions with anyone. It is also an Honor Code violation to retain a copy of this exam in any format (printed, downloaded, scanned, photographed, etc.).

Update on Louisiana Ten Commandments Case

 Press release from Liberty Counsel:

The U.S. Fifth Circuit Court of Appeals issued an order Friday allowing Louisiana to post the Ten Commandments in public school classrooms in accordance with the state’s new law, except in the five school districts where parents have challenged the law. The Appeals Court’s order limits the scope of a lower court ruling that initially blocked Louisiana’s Ten Commandments law statewide as unconstitutional. The state is now free to post the Ten Commandments in its remaining 67 school districts beginning January 1, 2025 as litigation continues.

Louisiana state attorneys had filed an emergency motion with the Fifth Circuit arguing that lower court Judge John deGravelles had overstepped his authority when he ordered all 72 school districts in the state be notified that he had struck down the law instead of just the five districts involved in the lawsuit. The Appeals Court decided 2-1 in a one-sentence order to grant the state’s motion for an “administrative stay” which pauses the judge’s notification requirement and only allows his judgment to affect the five school districts with parents officially challenging the law. The Louisiana school districts currently blocked from posting the Ten Commandments are East Baton Rouge Parish, Livingston Parish, St. Tammany Parish, Orleans Parish, and Vernon Parish. The state is appealing to overturn Judge deGravelles full judgment arguing the law is constitutional.

In June 2024, Louisiana enacted House Bill 71 which requires all K-12 public schools and state-funded universities to display at least an 11-inch by 14-inch poster of the Ten Commandments. The displays must have a four-paragraph “context statement” describing the history of the Ten Commandments and how they “were a prominent part of American public education for almost three centuries.”

However, a multifaith group of nine families, consisting of Jewish, Christian, Unitarian Universalist, and nonreligious parents represented by the ACLU, the Freedom From Religion Foundation, and Americans United for Separation of Church and State, have challenged the law alleging the state is endorsing a specific religion.

Louisiana officials defended the Ten Commandments law as constitutionally valid by arguing that it has a historical and educational purpose. They cite the Decalogue’s “historical role” in developing American law and education, which displayed alongside other historical documents, would be permissible under the First Amendment. Since HB 71 also required public school classrooms to display the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance, the state's legal team argued that the law’s intent is not to endorse a religion but to teach where America’s longstanding moral values in civic life originate.

Louisiana has considerable grounds for its appeal. Recent Supreme Court precedents show that displaying the Ten Commandments is not necessarily a religious endorsement.  In American Legion v. American Humanists Association, the High Court wrote that the Ten Commandments “have historical significance as one of the foundations of our legal system” and represents a “common cultural heritage.” Then, in 2022, the cases of Shurtleff v. City of Boston and Kennedy v. Bremerton School District rejected and overruled the 1971 case of Lemon v. Kurtzman. The High Court replaced the “Lemon Test” by returning to a traditional First Amendment standard where courts must interpret the Establishment Clause by “reference to historical practices and understandings.”

Liberty Counsel’s Founder and Chairman Mat Staver said, “The Ten Commandments is a universally recognized symbol of law and has indelibly shaped the Western Legal Tradition and American government. There are more than 50 displays of the Ten Commandments inside and outside the United States Supreme Court. The Ten Commandments are ubiquitous and their central role in law and government pre-date the U.S. Constitution. With this injunction narrowed to only five school districts, the Ten Commandments will be displayed in nearly all Louisiana public schools.”

Speech by Government Employees: Black Letter Rules

 

In his linked article, Prof. Volokh provides a nice summary of the black letter rules concerning speech by government employees:

 "Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee's speech if

    the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
    the speech is on a matter of purely private concern, Connick v. Myers (1983), or
    the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Board of Ed. (1968).

This is quite different from the rules for criminal or civil liability for speech. Speech doesn't usually lose First Amendment protection, for instance, just because it's on a matter of purely private concern. Likewise, courts generally don't do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government's clients and more generally over how they do their jobs."

Nebraska Lawyers are Courageous: Mariwether v Hartrop

 Mariwether v Hartrop is a case about competing narratives, competing versions of the truth. Is biology a social construct? Can a man become a woman by identifying as a woman? Can a woman become a man by identifying as a man? Or is biology (and faith) real and inform us that gender is fixed at birth regardless of personal choice and identity?

Meriwther believed his version of the truth. Is his version a reasonable understanding of reality? If so, can his government employer compel him to say things he believes are untrue? To borrow from 1984, does he have the right to hold to his belief that 2 plus 2 make 4? Or must he say 2 plus 2 make 5?

If he had been a coward, it would have been so easy to use compelled pronouns and protect his job and his livelihood. But he chose to be a courageous leader, and declined to say something he believed to be untrue.

Here is a way to think about it. If you shared Meriwether's views about biology and gender, what would you do if you were at a meeting of student group leaders, and the person who called the meeting said "Let's start this meeting by introducing ourselves and sharing our pronouns?" Would you set aside what you believe to be true and share your pronouns to appease those who hold the competing narrative about biology and gender? Would you sacrifice what you believe to be true in order to be "nice"? Does being nice require you to appear to embrace a narrative you believe is untrue?

Meriwether v. Hartrop (compelled pronoun case)

                                                         Judge Amul Thapar

 

Professor at state university was disciplined because he refused to use a student's "preferred pronouns." The Sixth Circuit wrote a powerful opinion protecting academic free speech. Here is the court's description of the facts:

At the start of the school year, Shawnee State emailed the faculty informing them that they had to refer to students by their “preferred pronoun[s].”  Meriwether asked university officials for more details about the new pronoun policy, and the officials confirmed that professors would be disciplined if they “refused to use a pronoun that reflects a student’s self-asserted gender identity.”  What if a professor had moral or religious objections? That didn’t matter: The policy applied “regardless of the professor’s convictions or views on the subject.”

 Here are a few great excerpts from the decision:

1. "THAPAR, Circuit Judge. Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse."

2. "“Universities have historically been fierce guardians of intellectual debate and free speech.”  Speech First, Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019).  But here, Meriwether alleges that Shawnee State’s application of its gender-identity policy violated the Free Speech Clause of the First Amendment.  The district court rejected this argument and held that a professor’s speech in the classroom is never protected by the First Amendment.  We disagree:  Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors.  Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed."

3. "A decade later, in a case involving a similar New York law banning “subversive” activities, the Supreme Court affirmed that the Constitution protects “academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”  Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).  It characterized academic freedom as “a special concern of the First Amendment” and said that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”  Id.  After all, the classroom is “peculiarly the ‘marketplace of ideas.’”  Id.  And when the state stifles a professor’s viewpoint on a matter of public import, much more than the professor’s rights are at stake.  Our nation’s future “depends upon leaders trained through wide exposure to [the] robust exchange of ideas”—not through the “authoritative” compulsion of orthodox speech.  Id. (citation omitted); accord Sweezy, 354 U.S. at 249–50 (plurality opinion) (“To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”)."

4. " One final point worth considering:  If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity.  A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.”  That cannot be.  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe” such orthodoxy.  Barnette, 319 U.S. at 642." 

5. "The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings.  And a professor’s in-class speech to his students is anything but speech by an ordinary government employee.  Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection):  (1) the students’ interest in receiving informed opinion, (2) the professor’s right to disseminate his own opinion, and (3) the public’s interest in exposing our future leaders to different viewpoints.  See Lane v. Franks, 573 U.S. 228, 236 (2014); Sweezy, 354 U.S. at 250 (plurality opinion).  Because the First Amendment “must always be applied ‘in light of the special characteristics of the . . . environment’ in the particular case,” Healy, 408 U.S. at 180 (alteration in original) (quoting Tinker, 393 U.S. at 506), public universities do not have a license to act as classroom thought police.  They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy.  Otherwise, our public universities could transform the next generation of leaders into “closed-circuit recipients of only that which the State chooses to communicate.”  Tinker, 393 U.S. at 511."  

6. "Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into “enclaves of totalitarianism.”  Tinker, 393 U.S. at 511."

  Here is a link to the 6th Circuit's opinion. And here is a link to a short article analyzing the opinion.

 I have not assigned this opinion, but I encourage you to read it at some point during your journey through the halls of academia. There has never been a time in my 42 years of teaching when this opinion was more important and more necessary for the preservation of the university as a free and open marketplace of ideas.

In a recent case decided before the Virginia Supreme Court, a public high school teacher. who was fired because he refused to use a student's preferred pronouns (but instead used the student's preferred first name), won under the free exercise clause of the Virginia Constitution and under the Virginia Religious Freedom Restoration Act. See Vlaming v. West Point School Board. On remand, the case was settled when the school board agreed to pay $575,000 to Vlaming.

Free Speech Coalition v. Paxton (Oyez Preview)

 From Oyez:

Facts of the case

Texas enacted H.B. 1181, a law regulating commercial entities that publish or distribute material on internet websites, including social media platforms, where more than one-third of the content is sexual material harmful to minors. The law requires these entities to implement age verification methods to limit access to adults and display specific health warnings on their landing pages and advertisements. It defines sexual material harmful to minors using a modified version of the Miller test for obscenity.

Shortly after the law was enacted but before it took effect, plaintiffs sued, claiming H.B. 1181 violates their First Amendment rights and, for some plaintiffs, conflicts with Section 230 of the Communications Decency Act. The district court issued a pre-enforcement preliminary injunction, finding that the plaintiffs were likely to succeed on the merits of their claim and suffer irreparable harm. The court ruled that the age-verification requirement and health warnings fail strict scrutiny—that is, that it is not narrowly tailored to achieve a compelling government interest using the least restrictive means to achieve that interest—and that Section 230 preempts H.B. 1181 for certain plaintiffs. On appeal, the U.S. Court of Appeals for the Fifth Circuit concluded that rational basis review—i.e., rationally related to a legitimate government interest—was the proper standard of review and thus vacated the injunction against the age-verification requirement but affirmed as to the health warnings.

Question

Is a Texas law that requires any website that publishes content one-third or more of which is “harmful to minors” to verify the age of each of its users before providing access subject to “rational basis” review or “strict scrutiny”?