"Battle on Late-Term Abortions Shifts to a Clinic in Nebraska "

NYT has an article today. Here is an excerpt:

BELLEVUE, Neb. — The national battle over abortion, for decades firmly planted outside the Kansas clinic of Dr. George R. Tiller, has erupted here in suburban Omaha, where a longtime colleague has taken up the cause of late-term abortions....

Dr. Carhart declined to provide specifics on how late in a pregnancy he would be willing to perform an abortion. Dr. Tiller performed them, in some cases, as late as in the third trimester of pregnancy. Dr. Carhart’s fee schedule lists prices for abortions up to 22 weeks and 6 days (at that point, $2,100 in cash or $2,163 on a credit card), but notes that abortions after 23 weeks are available “after consultation with our doctor,” and that abortions after the 27th week may take four days.

At his clinic in the past, Dr. Carhart said, he had performed abortions up to about 22 weeks into gestation — considered by some to be near the earliest point at which a fetus can survive outside the womb, a notion known as viability and one that is cited in many laws related to abortion.

"How Many Votes To Overrule The Slaughterhouse Cases?"

Here is an excerpt from Orin Kerr's post at the Volokh blog:

As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause. The obvious question is, how many Justices will agree? My guess: only one. In this post, I want to peer into my crystal ball and see how each of the Justices (or group of Justices) will react to Gura’s argument.

1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote. Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.

2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia probably won’t agree with the Gura brief in light of stare decisis. In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years. If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect. That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges (more on that below). I just don’t think Scalia is going to want to do that.

3) Chief Justice Roberts and Justice Alito. Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter. But I don’t think they’re revolutionaries, and the brief calls for a revolution.

You can read the whole post here.

Philip K. Dick Story On reserve

I have placed copies of Philip K. Dick's short story, The Pre-Persons, on reserve in the library. I know some of you are interested in this sci-fi (law and literature) take on the abortion issue, so it is there if you are interested.

I am not assigning it. It is just there for those who would like to read a fictional take on the abortion issue.

Nebraska Ultrasound Bill

Here is the Nebraska Statute.

Here is a news report:

Nebraska will soon require those performing abortions to display ultrasound images of fetuses in a way that the women can easily view them.

Lawmakers passed the bill (LB675) Friday afternoon on a 40-5 vote, and Gov. Dave Heineman signed it a short time later. Four senators did not vote.

Supporters of the bill introduced by Sen. Tony Fulton of Lincoln argued it would give women more information to consider before making decisions.

Others criticized the bill, saying it's government forcing itself into a private procedure that should be between a doctor and a patient.

But there was no debate Friday before final approval, as is the Legislature's practice.

The bill also would require the state to compile a list of clinics that offer free ultrasounds to women.

Nebraska will become the 14th state to require that abortion providers offer patients chances to see ultrasound images. The bill will take effect Aug. 29.

Mary Spaulding Balch with the National Right to Life Committee said Nebraska's proposed law is worded more strongly than that of most other states with similar measures. She says Nebraska's law requires the ultrasound image to be displayed instead of just requiring that the woman be asked if she wants to see the image, as the other states do.

"We think it's an important distinction, because we feel that when women are in a crisis -- such as trying to decide whether or not they will have an abortion or not have the abortion -- they're probably just thinking that they don't want to be pregnant, and they're not really asking too many questions," she said.

But Bobbie Kierstead, a spokeswoman for Planned Parenthood of Nebraska and Council Bluffs (Iowa), said she doesn't believe the bill will change her organization's longtime practice of offering women the choice of whether to view an ultrasound.

"It should be their choice," Kierstead said.

Planned Parenthood had objected to this measure as an improper intrusion into the practice of medicine.

"This is basically telling doctors what information and what care is best for their patients," Kierstead said.

The Nebraska bill was based on a model proposal the National Right to Life group offered to lawmakers.

Spaulding Balch said some women have said that seeing the ultrasound images influenced them against getting abortions. But there is no hard evidence or statistics, because states don't track how often women request to see the images.

Racial Classifications and Strict Scrutiny

Racial classifications are considered highly suspect, because race has often been employed by the law for invidious purposes. See, e.g., Plessy.

But suppose the pupose is not invidious. Here are two hypos once posed by Prof. Brest:

1. He posed the case of a public school principal who seats blacks on one side of the stage at graduation and whites on the other side for aesthetic reasons.

2. He also posed the case of a prison warden who temporarily separates black and white prisoners in order to quell an outbreak of racially motivated violence. Cf. Johnson v. California, casebook p. 789.

Apply strict scrutiny in each of these cases.

Montana Enacts a 9th & 10th Amendment Law

Travis Kavulla has an interesting article in National Review which he summarizes at his blog:

Gun Nuts

October 16th, 2009 by Travis Kavulla

Well, I have managed to get some work done this week, mostly in between fulminating about City Government…

The new National Review is out and includes my piece about the unprecedented Montana Firearms Freedom Act, our state’s rejection of federal regulation for arms made and staying within the state.

Gun Nuts
Montana sends a shot across the bow of federal regulation

Travis Kavulla

Great Falls, Mont.
Long has Montana been enthusiastic on the subject of guns, but the Montana Firearms Freedom Act takes the cake.

Passed this spring by the state legislature, a group of folks who meet for 90 days every other year, the law declares that any weapon or round of ammunition made in Montana and remaining within state borders “is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.” This bold declaration of independence became law October 1, though even before then the Bureau of Alcohol, Tobacco, and Firearms had sent out a memorandum to gun dealers, the summary of which was: Don’t even think about it. A lawsuit is pending. [...]

The piece includes a first-person description of the Great Falls Gun & Antique Show and also an interview with freshman Rep. Wendy Warburton, a Republican who took a seat in Havre and has a lot of conservative verve. I am sure many Beltway readers will be stunned to learn there is a Great Falls other than the one in Virginia.

Does A's Right of Choice

trump B's right of conscience? Here is an excerpt from a post from the ReligionClause blog:

9th Circuit Denies En Banc Rehearing On Washington State Pharmacy Board Regs

In Stormans Inc. v. Selecky, (9th Cir., Oct. 28, 2009), the U.S. 9th Circuit Court of Appeals refused to grant an en banc rehearing. In July, a 3-judge panel in the case refused to preliminarily enjoin enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. (See prior posting.)

Apply Glucksberg

To the argument that the right to same-sex marriage is a fundamental right under SDP analysis.

D&E vs. D&X Abortion Procedures

After Casey: 3D & 4D Ultrasound Requirement?

Following the Court's adoption of the "undue burden" test in Casey, would an informed consent law requiring that a woman have a 3D ultrasound before having an abortion impose an "undue burden" on the right to choose?

Technological advances in ultrasound are amazing. Here is a link that shows how this works. By the way, this site is not a "pro-life" advocacy site. It is a commercial site offering ultrasound service to expecting mothers.

Here is another link to some first trimester 3D images.

And here is an interesting article by Star Parker--Abortion and the politics of ultrasound--that discusses this issue.

Sixth Circuit Says No reproductive Autonomy For Men

Interestingly, the courts are totally unsympathetic toward men who wish the same right as women to become parents only by choice.

Link. Excerpt:

"A federal appeals court has upheld a lower court's decision making a Michigan man pay child support for his ex-girlfriend's baby. Matthew Dubay, a 26 year-old computer programmer, says men should have the same rights as women do under Roe v. Wade to exempt themselves from responsibilities for a child they don't want.

The 6th Circuit U.S. Court of Appeals issued its decision on Tuesday and sided with U.S. District Judge David Lawson, who rejected the lawsuit as frivolous.
The appeals court gave Dubay a limited victory by also rejected the state's bid to have him pay the cost of attorneys fees for their work in the appeal. Judge Lawson had ordered Dubay to pay the fees.

Dubay says that if women have the right to have an abortion and end their responsibility for an unborn child, men should have the same right.
He says his former girlfriend, Lauren Wells, did not want have children and told him during their relationship that she couldn't get pregnant.

Dubay attorney Jeffery Cojocar previously said he would take the case to the Supreme Court if the appeals court sided with the lower court's decision.
Lawson disagreed with Dubay's argument that Michigan's paternity laws violate the Constitution's equal protection clause. He said the law is unconstitutional because it requires fathers to pay child support "even if he did not want the child to be born."

"The fundamental flaw in Dubay's claim is that he fails to see that the state played no role in the conception or birth of the child in this case, or in the decisions that resulted in the birth of the child," Lawson wrote."

Hmmm. Life begins at "conception" for fathers and, although they have no part in the decision about whether a potential life is allowed to become an actual life or whether a live birth of a new person takes place, they should not look to the courts for protection.

Is this a kind of gender stereotype that is being imposed by the courts on men? Are the courts saying to fathers you should "man up" and "be strong" and "take personal responsibility" for the consequences of your sexual choices?

Lochner Query?

Why would a baker want to work more than 10 hours a day or 60 hours a week?

Hmmm. Maybe he kneads the dough!

Hattip: Prof. David Mann

Second Amendment Case: Cert Granted

From ScotusBlog:

Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

• Opinion below (7^th Circuit)
• Petition for certiorari (08-1521)
• Brief in opposition
• Petitioner’s reply (08-1521)
• Brief amicus curiae of Arms Keepers
• Brief amici curiae of Texas, et al
• Brief amicus curiae of National Shooting Sports Foundation, Inc.
• Brief amicus curiae of American Civil Rights Union
• Brief amici curiae of Institute for Justice, and Cato Institute
• Brief amicus curiae of California
• Brief amici curiae of Gun Owners of America, Inc.,et al.
• Brief amici curiae of Constitutional Law Professors

• 
  

Incorporation of the Second Amendment

Circuit Courts are split. See here and here.

Justice Thomas and "Partial Incorporation" of the EC

Here

"Ten Tips for Excellence in Appellate Advocacy"

You might find this article by appellate lawyer and blogger Howard Bashman of interest.

Class Cancelled Friday Sept. 25

The Young Lawyers Seminar-- next Friday, Sept. 25-- will be held in Rm. 113. We have been evicted from our classroom to make room for this program.

So, as I announced in class today, we will not meet on Friday Sept. 25.

Instead, we will extend each class by roughly 7-10 minutes until we have made up 75 minutes.

I figure we have already made up about 20 minutes (including today's minutes), so we should be able to get this done in about 3 weeks.

Blogging From the Beach: Some Thoughts About Summum and Buono

Here is a post from Prawfsblawg:

Four of us are preparing short pieces on Summum for Northwestern Law Review’s Colloquy. The other contributors are Joseph Blocher (Duke) and Prawfs alums Christopher Lund (Wayne State) and Bernadette Meyler (Cornell). We are still working through the editing process, but I thought I’d preview my thoughts here. A draft of Chris Lund’s piece is already available on SSRN. I’ll post links to the others when they appear.

The two cases present the question in different ways. On the one hand, the Court recently handed down Summum, which involved a Ten Commandments monument that a private religious organization donated to a city. The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took title to the monument itself. It therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monument⎯The Seven Aphorisms of Summum⎯alongside the Ten Commandments. Finding the existing monument constituted government speech allowed the Court to dismiss Summum’s claim that municipal officials selectively opened the parkland to only certain types of private sectarian speech in violation of the First Amendment. The Court reasoned that Pleasant Grove could exclude Summum’s monument because when the government itself speaks, it can select its message without giving equal airtime to other perspectives. (Of course government adoption of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated: Summum wanted its monument included, and did not want to risk the exclusion of both. Moreover, an antiestablishment challenge probably would not have been successful under Van Orden, as Chris Lund has pointed out.) You can think of the city’s decision to accept, display, and acquire the Ten Commandments monument as the opposite of privatization—it “publicized” a sectarian symbol, both in the sense that it formally took title to the display and in that it used public property to broadcast the message.

On the other hand, consider Buono, which the Court will hear on October 7. It concerns a white cross that has long stood in the Mojave National Preserve. (Photos and a description appear on the NPS's website.) After a lower court ruled that the cross was an unconstitutional establishment, Congress intervened and conveyed the small parcel of land containing the cross to a private organization. Privatizing the speech was meant to quell antiestablishment concerns by disassociating the federal government from the sectarian message. Yet Congress retained ties to the land, including a property interest and certain regulatory power. The transaction’s highly structured nature left the federal government open to charges of ventriloquism—using a private party to convey what essentially remained a government message.

Moreover, to the extent that Congress succeeded in privatizing the cross, it became vulnerable to just the sort of free speech objection that the government in Summum successfully evaded by publicizing the sectarian monument. It is not totally inconceivable to imagine a minority sect arguing today that once Congress has agreed to privatize one form of sectarian speech, it has a constitutional obligation to offer such deals to all private speakers on equal terms. As things turned out, however, only one constitutional issue is before the Court in Buono—the antiestablishment request to undo the privatizing transaction—and the government’s evasion of that claim is likely to succeed, at least in the short term.

One of these cases, then, asks whether government can avoid a constitutional difficulty by publicizing private sectarian speech, while the other asks whether government can evade a different constitutional problem by privatizing such expression. Both of them present their issues in the context of government stewardship over its property, specifically real property that it has opened up to the public as parkland. Both involve government evasion of one constitutional question in a way that may raise a countervailing constitutional difficulty. And both will probably be resolved in favor of the government on the ground that it has successfully insulated itself from a constitutional challenge through actions involving a property transfer. (Summum already has been decided that way). Generally, then, both cases concern the interrelationship between private law arrangements and public law obligations.

Differences separate the cases, of course. Most obviously, Summum was litigated exclusively as a speech case, while Buono presents only an antiestablishment question. Moreover, one concerns a locality, while the other challenges the federal government. Nevertheless, they can profitably be thought through together. Juxtaposing them may teach us something about government use of private law transactions to avoid public law obligations, especially constitutional duties.

One question is whether the outcome of each case is correct (assuming I have accurately predicted the result in Buono). What people think about that will depend on their underlying theories of antiestablishment and freedom of speech. Some may focus on citizens’ autonomy around matters of conscience and expression, while others may prioritize evenhandedness toward sects or viewpoints. Yet apart from the outcome question, there is the matter of whether straightforward application of property rules to these cases adequately serves the constitutional values at play. Does saying that a city’s acquisition of a sectarian monument effectively renders its message government speech, thereby putting it beyond the reach of the Speech Clause, capture everything the First Amendment either permits or requires? Does it satisfy public principles to say that Congress can manage its Establishment Clause obligations by means of a sophisticated land transaction that formally privatizes the religious symbol? In short, are courts asking the right questions?

State Website With Links to "Affirming Churches"

From the Religion Clause blog:

State Agency Removes Website Links To "Open and Affirming" Churches

Connecticut's Department of Children and Families has removed from its website links to "open and affirming" churches-- i.e. churches that welcome gays, lesbians and persons who are bisexual and transgender. Yesterday's Hartford Courant reports that the links were removed after the Family Institute of Connecticut (FIC), a group that opposes same-sex marriage, threatened to sue. It claimed that placing the links on the state agency's website violates the Establishment Clause as well as parental rights. FIC also asked the Department to make sure that the organization training social workers on issues faced by GLBT youth does not provide information on "open and affirming" churches in its training sessions.

Do you agree that these links violate the EC? If not, would you also allow the state to selectively post links to churches with "morally uplifting" views concerning the sinfulness of homosexual conduct? Would it be okay for the state to provide links to churches with Biblically sound doctrines of salvation? Or does neutrality require the state to refrain from endorsing all religious positions on homosexuality?

Student Religious Liberty Act

From the Religion Clause Blog:

Arizona Governor Signs Students' Religious Liberties Act

On July 10, Arizona Gov. Jan Brewer signed HB 2357, the Students' Religious Liberties Act. It bars public schools from discriminating against parents or students on the basis of religious viewpoints or expression, including religious viewpoints included in class assignments, artwork or coursework. It provides that students may pray or engage in religious activities or expression before, during and after the school day in the same manner that students are allowed to engage in nonreligious expression or activities.

Students are permitted to wear clothing that displays a religious message, or religious jewelry, to the same extent that clothing or jewelry with other messages or symbols is allowed. The law specifically, though, permits banning of clothing and accessories denoting criminal street gang affiliation. The new law goes on to provide that it shall not be interpreted to require any student to participate in prayer or other religious activity, or to otherwise violate a student's constitutional rights. Finally it requires exhaustion of internal administrative complaint procedures before a parent or student may bring a lawsuit to enforce the provisions of the statute. AP reported on the signing of the bill.

Who is Harmed?

By a cross display in the desert?

Here is a brief excerpt from the First Amendment Center's analysis of the next big EC case to be decided by the Supreme Court:

A large Christian cross stands hidden inside a plywood box atop an outcropping in a California desert, symbolizing the unsettled state of First Amendment law on the placement of religious symbols on public property.

But the box might soon be removed to reveal the cross again — or the cross could come down altogether — depending on how the Supreme Court rules in a longstanding dispute over the religious display.

The Court agreed yesterday to take up Salazar v. Buono, the case of the cross that serves as a war memorial in the federal Mojave National Preserve in San Bernardino County. It will test the attitude of the new Roberts Court — especially the newest justice, Samuel Alito Jr. — on how to resolve thorny establishment-clause questions.

If the high court rules that the cross violates the First Amendment, a brief by the Veterans of Foreign Wars warns, “The destruction of this and an untold number of like veterans memorials is sealed.” The brief cites everything from the Navy Cross to crosses at Arlington National Cemetery as possible targets.

But Barry Lynn, executive director of Americans United for Separation of Church and State, says, “The federal parks belong to all Americans and are not the appropriate place for the display of religious symbols.” Lynn adds, “Men and women of many faiths and none have served our country honorably … . A Christian symbol cannot memorialize them all.”

Keep your eye on this one.

If you are riding through the desert on a horse with no name, just avert your eyes if you are offended by this display. No harm, no foul?

Incorporation of Second Amendment: "A new Second Amendment case"

From SCOTUSBLOG (link):

Alan Gura, the Alexandria, Va., attorney who won the historic Supreme Court ruling last year establishing a personal right to have a gun for self-defense at home, started a new challenge in the Supreme Court Tuesday. It seeks to have the Second Amendment right enforced against state, county and city gun control laws. The petition in McDonald, et al., v. City of Chicago, can be downloaded here. (A docket number has not yet been assigned.)

Last week, the National Rifle Association filed a separate appeal raising the same issue (NRA, et al., v. City of Chicago, docket 08-1497). It is doubtful that the Court will consider the two new cases before recessing for the summer, probably late this month.

The McDonald petition involves four Chicago residents, the Second Amendment Foundation and the Illinois State Rifle Association, all challenging a handgun ban in Chicago. Their petition said the ban is identical to one struck down by the Supreme Court in its Second Amendment ruling last June in District of Columbia v. Heller (07-290).

The Heller decision, however, applied only to laws enacted by Congress or for the federal capital in Washington. The Court expressly left open the question of whether individuals would have the same right against state and local government gun restrictions.

Arguing that the Second Amendment right is a “fundamental” one, the new petition said that means that the Fourteenth Amendment guarantees that such rights “may not be violated by any form of government throughout the United States. Accordingly, Chicago’s handgun ban must meet the same fate as that which befell the District of Columbia’s former law.”

Part of their argument is that the Justices should step in now to resolve a dispute among federal appeals courts and state supreme courts on whether the Second Amendment is absorbed (technically, “incorporated”) into the Fourteenth Amendment — a part of the Constitution that operates against state and local government.

The question posed to the Court is whether the incorporation is accomplished under either the “privileges or immunities” clause of the Fourteenth Amendment, or under its “due process” clause. The petition urges the Court to use this case as an opportunity to reexamine the meaning of the “privileges and immunities” provision, which it noted was given an “almost meaningless construction” by the Court’s controversial decision in the Slaughter- House Cases in 1873.

The split of authority in lower courts “warrants speedy resolution, as it perpetuates the deprivation of fundamental rights among a large portion of the population,” it said. It would serve no purpose to let this conflict go on, the petition contended.

And here is a post from Volokh blog about news coverage of the incorporation issue:

L.A. Times Coverage of Second Amendment Incorporation Decisions:

The Seventh Circuit decision (from Chicago), holding that the Second Amendment doesn't apply to the states, is covered in a nearly-800-word story today. The Ninth Circuit decision (from Northern California) this April, holding that the Second Amendment does apply to the states, wasn't covered at all by the Times at the time. [UPDATE: I realized that my earlier locution here, "wasn't covered at all," was ambiguous; I meant wasn't covered at the time, but in context it could be read as saying that the article about the Seventh Circuit case doesn't mention the Ninth Circuit decision -- it does, about halfway down.]

To be sure, there are possible explanations: Today's story was by the Times' Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it's made higher profile by the controversy about Judge Sotomayor's participation in the Second Circuit's no-incorporation decision.

At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit's incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.

So it seems to me that both cases would have been newsworthy to the L.A. Times, the Ninth Circuit case at least as much as the Seventh Circuit case. But as I noted shortly after the Ninth Circuit decision, the Ninth Circuit case wasn't covered in the L.A. Times at the time

Likewise, the Washington Post mentions the Seventh Circuit case (though in a heavily Sotomayor-focused article) and didn't mention the Ninth Circuit case when that came down.

Great New Scalia Quote

From his dissent in Caperton:

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.

Or, as I like to say, not everything bad is constitutionally forbidden, and not everything good is constitutionally required. But sometimes it seems like that is what the Court tries to accomplish.

Exam Summer 2009

The exam is a 3-hour closed book exam which consists of three questions for a total of 200 points.

Question One is a short essay of approximately 100 words or less that counts for 25 points.

Question Two is a short essay of approximately 200 words or less that counts for 50 points.

Question Three is a longer essay of approximately 1500 words or less that counts for 125 points.

The exam 4 software does have a running word count feature that allows you to keep track of your word limits.

Good luck. Together, we have survived 3 hours a day of reading Supreme Court prose. As a fellow survivor of pre-session, I will try to remember the immortal words of the Bard in their original beauty when grading your exams:

The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown.
His scepter shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings.
But mercy is above this sceptered sway;
It is enthroned in the hearts of kings;
It is an attribute of God himself;
And earthly power doth then show like God's
When mercy seasons justice.

"School Choice Is the New Civil Rights Struggle"

Today's WSJ has this article by Brendan Miniter:

Getting arrested doesn't normally bolster a politician's credibility. But when South Carolina state Sen. Robert Ford told me recently that he saw the inside of a jail cell 73 times, he did so to make a point. As a youth, Mr. Ford cut his political teeth in tumultuous 1960s civil-rights protests.

Today this black Democrat says the new civil-rights struggle is about the quality of instruction in public schools, and that to receive a decent education African-Americans need school choice. He wants the president's help. "We need choice like Obama has. He can send his kids to any school he wants."

Mr. Ford was once like many Democrats on education -- a reliable vote against reforms that would upend the system. But over the past three and a half years he's studied how school choice works and he's now advocating tax credits and scholarships that parents can spend on public or private schools.

He's not alone. Three other prominent black Democrats in South Carolina have publicly challenged party orthodoxy. In 2006 State Rep. Harold Mitchell Jr. crossed party lines to endorse Republican Karen Floyd for state education superintendent. "We have to try something different," he told me at the time. That same year, Curtis Brantley defeated a state representative in a primary fought over education reform. And last year, Ennis Bryant ran (unsuccessfully) against an anti-school-choice state representative in a primary.

These men are the most visible part of a movement joining black Democrats and political conservatives in a common cause. In recent years, school-choice candidates (black and white) have taken the seats of more than half a dozen antichoice legislators, and there have been two mass rallies for school choice at the state capitol that included black leaders.

Charter and private schools geared toward impoverished black children also are cropping up, and no wonder. There are about 700,000 students in public schools in South Carolina, more than a third of whom -- 247,000 -- are in schools considered to be failing based on test scores. Nearly 60% of the kids in these failing schools -- about 146,000 -- are African-American. Blacks make up about 39% of public-school students.

In March, a Pulse Opinion Research poll of 1,000 black voters in the state reported that 53% agreed that school choice would improve public education (28% disagreed). Support for school-choice legislation increased to 61% when Mr. Ford's name was attached to it.

Two years ago, legislation that would have created education tax credits failed in the House by a handful of votes and could pass today with the support of just a few more members. Meanwhile, Mr. Ford estimates that he is now just two votes shy in the state Senate of passing legislation that would create scholarships for poor children, and education tax credits for all parents, that would be equal to half of what the state spends per-student in each district. When Mr. Ford announced his bill in March, he held a press conference in the capitol that forced work on the House floor to come to a standstill as lawmakers made their way out to hear him thunder, "I don't give a damn about the money. I'm doing this for the kids."

The danger for Democrats still opposed to school choice is that Mr. Ford represents widespread frustration among black voters who see Mr. Obama in the White House and now expect real change to occur in their communities. Black voters could come to support conservative education policies (if not GOP candidates).

Typically, school-choice fights involve Republicans and a handful of Democrats pushing vouchers for a limited number of poor kids in inner cities. That's fine as far as it goes. But, as is evident in Washington, D.C., it doesn't go far. With just a few thousand families receiving vouchers, congressional Democrats are confident that they can kill the school-choice program in D.C. without provoking a voter backlash.

In South Carolina, however, the tax credits on the table would go to middle-class and poor parents alike and would align the interests of the vast majority of voters with those of poor families. If such tax credits take root, they will create a coalition between black Democrats and Republicans and be nearly impossible to trim back, let alone repeal.

That coalition is already starting to form. Mr. Ford is finding a ready ally in Republican Gov. Mark Sanford, who has spent the past six years pushing for school choice. The governor has already enacted charter-school legislation, created choice at the prekindergarten level, and has twice pushed for tax credits. School choice is a top goal of his in his final two years in office.

South Carolina doesn't have powerful education unions that can derail reforms, so Democrats are scrambling for alternatives. Jim Rex, the state school superintendent, is pushing to give parents more choices within the public system -- such as magnet schools and single-gender programs. He has also revamped the state's standardized tests. But Democrats are late to the game and parents are growing impatient for progress.

"[Mr.] Obama knows the right thing to do," Mr. Ford told me, noting that just a few words from the president praising education tax credits would likely swing the state senators he needs to pass his legislation. But will the president do it?

Does Your Group Say "Amen?"

From the ReligionClause blog:

County Backs Off Controversial Zoning Citation Against Bible-Study Group Meetings

A land use citation issued by the San Diego County Department of Planning and Land Use has generated a swirl of protest. As reported last week by the Christian Examiner and the San Diego Union-Tribune, Paster David Jones and his wife hold weekly Bible study sessions at their home. Around 20 people attend. After complaints about parking congestion, the county told the Jones' that regulations required a permit to use premises for "religious assemblies." An international furor was generated when a report disseminated widely online said that when a county code enforcement officer visited the home on Good Friday, he asked-- apparently to determine if it was a "religious assembly"-- questions about whether the group prays or uses the words "amen" and "praise the Lord." The Western Center for Law & Policy sent a letter (full text) to the county arguing that the Bible study is not a "religious assembly" within the meaning of the zoning regulations, and that the administrative citation violates RLUIPA, the free exercise clause and the Jones' right to peaceably assemble. The county has now backed off, deciding that the meetings are not religious assemblies, which are defined in county regulations as: "religious services involving public assembly such as customarily occurs in synagogues, temples, and churches." It continues to investigate whether the questions asked by the investigating officer were proper.

US Dept of Justice On Colorado Christian University Case

From the DOJ Religious Freedom in Focus:

State May Not Discriminate Against Religious Universities in Scholarship Program, Appeals Court Rules

On July 23, the United States Court of Appeals for the Tenth Circuit ruled that Colorado’s exclusion of students attending a nondenominational Christian university from state scholarship and aid programs violated the U.S. Constitution. The court held that denying students scholarships because they choose to attend schools that the state deems to be “pervasively sectarian” violates the Constitution. The United States had filed a friend-of-the-court brief in support of the position adopted by the court in the case, Colorado Christian University v. Weaver.

Colorado provides various scholarships and other aid to students attending private colleges and universities, but does not permit any aid to students attending schools that are “pervasively sectarian,” regardless of whether the student majors in a religious subject or subjects such as physics, business or engineering. To determine whether a school is “pervasively sectarian,” state officials examine criteria such as whether students and faculty are of “one religious persuasion,” whether the governing board reflects a particular religion, and whether there are required courses in religion or theology “that tend to indoctrinate or proselytize.” Under this policy, students have been permitted to use Colorado scholarships at a Methodist university and a Jesuit Roman Catholic university, but were forbidden to use scholarships at a nondenominational evangelical Protestant university and a Buddhist university that the Colorado Commission on Higher Education found to be too religious.

Colorado Christian University, one of the two schools determined by the State to be “pervasively sectarian,” filed suit, contending that barring its students from scholarship aid constituted discriminated in violation of the First and Fourteenth Amendments. The district court disagreed and granted summary judgment in favor of the State.

On appeal to the Tenth Circuit, the United States filed a friend-of-the-court brief, arguing that Colorado was unconstitutionally discriminating against students who attended schools deemed too religious by the State. In its brief, the United States stressed that the Supreme Court in Mitchell v. Helms (2000), had rejected the “pervasively sectarian” doctrine, that is, the concept that certain institutions were so religious that any aid flowing to them, however indirectly or however secular in nature, automatically became constitutionally tainted. The United States brief argued, citing the plurality opinion in Mitchell, that “nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of the Court bar it.”

The Court of Appeals agreed with the University and the United States and reversed the trial court. The court held that the “now-discarded doctrine that ‘pervasively sectarian’ institutions could not receive otherwise-available education funding” was an invalid basis for discrimination against certain religious schools. The court followed the Mitchell plurality’s view that “the application of the ‘pervasively sectarian’ factor collides with [Supreme Court] decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity.”

Additionally, the Court of Appeals held that the Colorado scholarship program’s policies violated the “well-established” principle that the government “should refrain from trolling through a person’s or institution’s religious beliefs.” In barring scholarships from being used at “pervasively sectarian” institutions, the court observed, the Colorado Commission on Higher Education engaged in intrusive and subjective inquiries such as reviewing syllabi in courses of Christian literature to determine if they proselytized or indoctrinated, deciding that faculty of multiple of Christian denominations represented a single religious persuasion rather than a multiplicity of religious persuasions, and other similarly searching inquiries of religious matters. This violated the Constitution, the court held. The court concluded that “if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices.”

Cutter v. Wilkinson: Fixed Link

I have fixed the link to the Cutter decision for Thursday's class. Here it is: link

RLUIPA

Here is a link to the full text of the Religious Land Use and Institutionalized Persons Act

Cutter: More Commentaries

1. Consider Prof. Garnett (link):

Cutter is also interesting for the many questions left tantalizingly unanswered. For example, even if the prison-related provisions of law do not “establish” religion, what about the land-use and zoning-related provisions? Or, even if the act does not run afoul of the First Amendment, does Congress have the power to enact the law in the first place? (Remember, the Rehnquist Court has several times reminded us that ours is a federal government of enumerated and limited powers, and that just because a policy is wise or humane does not mean Congress has the power to pursue it through regulations). And, the justices determined only that the law itself did not violate the First Amendment; they left open the possibility that particular applications of the law might nonetheless fall short of constitutional requirements. All these (and many other) questions are being litigated, and will almost certainly be confronted by the Court.

2. Prof. Hamilton (link):

As noted above, the Court upheld RLUIPA's prison provisions against Establishment Clause attack. That means the "strict scrutiny" standard, at least in name, still applies in the prison context.

But the Court also did something interesting: It held that this high standard should be interpreted by courts to encompass deference to prison officials' judgments.

Justice Ginsburg, writing for the Court, repeatedly emphasized this point - citing legislative history that instructed courts to apply RLUIPA with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources."

In a footnote, Justice Ginsburg re-emphasized this point, writing for the Court that "It bears repetition . . . that prison security is a compelling state interest, and that deference is due to institutional officials' expertise in this arena." And she ended her opinion for the Court by noting that "Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility should be free to resist the imposition."

My Locke v. Davey Handout

The last handout for Thursday's class is available in the racks near the South Side faculty Suite.

Handouts

We had a problem copying Handout 6--the Lukumi decision. Only every other page was copied.

I will get the corrected handout to you in class Tuesday. We will not be discussing Lukumi until Wednesday, so this should not be a problem.

Also the reprint of my "Individualized Exemptions and Hogwarts" article is now available in the handout racks near the South Side faculty Suite.

Rick Duncan

The "Deep Wisdom" of Repugnance

It is common today in the law for scholars to assert that "mere" moral outrage is not a legitimate reason to oppose some asserted "liberty" interest. Prof. Leon Kass, a very distinguished philosopher, once took on this issue in connection with an article opposing human cloning. Here is a key excerpt:

Revulsion is not an argument; and some of yesterday’s repugnances are today calmly accepted — though, one must add, not always for the better. In crucial cases, however, repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it. Can anyone really give an argument fully adequate to the horror which is father-daughter incest (even with consent), or having sex with animals, or mutilating a corpse, or eating human flesh, or even just (just!) raping or murdering another human being? Would anybody’s failure to give full rational justification for his or her revulsion at these practices make that revulsion ethically suspect? Not at all. On the contrary, we are suspicious of those who think that they can rationalize away our horror, say, by trying to explain the enormity of incest with arguments only about the genetic risks of inbreeding.

The repugnance at human cloning belongs in this category. We are repelled by the prospect of cloning human beings not because of the strangeness or novelty of the undertaking, but because we intuit and feel, immediately and without argument, the violation of things that we rightfully hold dear. Repugnance, here as elsewhere, revolts against the excesses of human willfulness, warning us not to transgress what is unspeakably profound. Indeed, in this age in which everything is held to be permissible so long as it is freely done, in which our given human nature no longer commands respect, in which our bodies are regarded as mere instruments of our autonomous rational wills, repugnance may be the only voice left that speaks up to defend the central core of our humanity. Shallow are the souls that have forgotten how to shudder.

This is not directly related to "Religion and the Constitution," but I think it is indirectly related.

What do you think about the "wisdom of repugnance?"

A Good Student Comment

There was an interesting student comment on the blog yesterday (keep those comments coming--it is great to hear from so many of you). I would like to discuss this one in class. Here is the comment:

kennedy isn't much of a swing vote in 10 commandment cases...he voted in mcreary and van orden to uphold the public displays as constitutional. breyer did provide the blueprint, as discussed in class, to make a compelling argument against such displays, but it comes down to the critical decision of "whose choice"? is it the local govt or the scotus? should it be up to an arbitrary group of 9? what do the 4.5 conservatives think about the changing views of religion in the country? how do they reconcile the fact that this generation has nearly doubled the number of agnostics as the last generation? (see gallup pollhttp://www.gallup.com/poll/1690/Religion.aspx and aris research..."According to ARIS, then, there could be as many as 40 million adult nonbelievers in the United States! Personal God Going the Way of the Dodo? Consider: If these numbers are correct, nonbelievers amount to more than the highest estimates of African Americans or gays. Secularists are one of America’s largest minorities. It is no longer possible to proclaim, as the Gallup Poll announced fifty years ago: “Nearly all Americans believe in God.” That is today’s most significant change".) does that erode the constitutional history basis they rely upon if the trend continues?

Here are a few questions.

1. Who should decide the content of public displays in Nebraska or Texas or Rhode Island? The 4.5 conservatives on the Supreme Court? The 4.5 liberals on the Supreme Court? Or the process of democratic self-government in Nebraska and Texas and Rhode Island?

2. Assuming that the Gallup Survey is correct, how should the changing demographics of America affect the written Constitution? Should the EC become more separationist as America becomes less religious? How can a written rule morph with the latest trends in opinion polls?

3. Or perhaps the EC should become less separationist as America becomes more agnostic? After all, an agnostic is someone who is skeptical about the existence or non-existence of God, and presumably would wish to see many points of view--both secular and religious--displayed in the public square. No? Why should we think that an agnostic--as opposed to an atheist--would want only one view of reality (the non-religious view) portrayed in public places?

4. How does increasing pluralism among our people affect the issue of public support for education in America? Should we continue with a one-size-fits-all government school system? Or should we recognize that different kinds of people have different educational needs? Is school choice with some kind of a tuition voucher necessary for justice and equality for children in a Nation that no longer agrees on first principles concerning what is true, what is good, and what is beautiful?

Keep Your Eye on Justice kennedy

As you have been noticing, many of these Establishment Clause cases come out 5-4, one way or the other. Until she left the Court a few years ago, Justice O'Connor was the swing vote, the median Justice, the one whose vote decided the case. But now that she has left, Justice Kennedy is the median Justice.

Here is how the Court looks right now:

I. The liberal, strict separationist block:

Stevens, Ginsburg, Souter, and (usually) Breyer

II. The conservative, non-separationist block:

Scalia, Thomas, Roberts and Alito

And that leaves Justice Kennedy who usually votes with the conservative, non-separationist block (see Allegheny), but occasionally (particularly on school prayer cases) votes with the separationists

Supreme Court Oral Arguments in Mojave Cross Memorial Case

The ReligionClause blog has the report:

Supreme Court Hears Arguments In War Memorial Cross Case [Revised]

The Washington Post and the Los Angeles Times report on today's oral arguments before the U.S. Supreme Court in Salazar v. Buono. At issue is the question of whether Congress' transfer to the VFW of the Sunrise Rock Cross, located in the Mojave Preserve war memorial in California, eliminated Establishment Clause problems that might otherwise exist with government display of a religious symbol. The arguments involved extensive questions from the Justices, and a number of the questions focused on the exact procedural posture of the case. There were also questions about the broader underlying Establishment Clause issue. In addition, the government had raised a standing issue, and there was some questioning about whether it was appropriate to still raise standing at this stage of the litigation. (See prior posting.) The Supreme Court has posted the full transcript of the oral arguments on its website. All the briefs filed in the case are also available online.

Objections to Passive Displays by Government

Imagine two cases:

Case One

John Doe brings an action against the City of Lincoln under the Establishment Clause claiming that a Nativity scene in Holmes Park is unconstitutional because it "conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the community."

Case Two

John Pilgrim, a devout Southern Baptist, brings an action against the City of San Francisco under the Free Exercise Clause claiming that a "Gay Pride--Stop Homophobia" display in a city park conveys a message to religious believers such as Pilgrim that they are not full members of the politcal community and a corresponding message to supporters of the display that they are favored members of the community.

Under the existing law, Doe will win his case under County of Allegheny and Pilgrim will be laughed out of court because there is no right to enjoin governmental displays that merely offend one's religious beliefs. The remedy for Pilgrim is to avert his eye from government displays he finds offensive; a passive display does not substantially burden Pilgrim's free exercise liberty.

How should these cases come out under the First Amendment?" Should both claims succeed? Both fail? Or should one succeed (which one?) and the other fail? Explain.

"When Is a Cross a Cross?"

Here is an interesting article by Stanley Fish on the Mojave Cross case recently decided by the Supreme Court.

Casebook Available Soon

The casebook was ordered months ago, but the book store screwed up. They tell us it will be available next Wednesday.

My advice is to buy a used copy from another student. I have used this book many times in the recent past, and many copies should be floating about the law school community.

Sorry for the inconvenience.

Student Speech in Public SAchools

Over at the First Amendment Center, David Hudson has a memo analyzing free speech in the public schools--How free is student speech?

Voluntary Accommodation

This is what any decent school district should do. From the Religion Clause blog:

School Board Grants Uniform Exemption On Religious Grounds For 2nd Grader

The Irving, Texas school board this week, by a vote of 6-1, reversed the decision of an elementary school principal and granted a mother's request that her 7-year old daughter be allowed to wear her shirt untucked for religious reasons. Thursday's Dallas Morning News reported that Dyker Neyland says her second grader needs to wear her shirt tail out to comply with the Biblical requirement for modest dress found in 1 Timothy 2:9. The school's rule is part of its dress requirement for students. Before the vote, Neyland told the Board that she thought she was "being persecuted for being a Christian."

Suppose instead of a "shirt tucking" rule, the school had a "no headgear inside" rule. Should the school exempt a Jewish boy who wished to wear a yarmulke or a Muslim girl who wished to wear a head scarf?

But suppose the school is unwilling to accommodate the religious dress requirement. Does the First Amendment require an accommodation? Forbid an accommodation? Query?

This Term's Reverse Discrimination Case

Here are several posts from How Appealing:

1. "Court divided on reverse discrimination claims": Mark Sherman of The Associated Press has this report. Update: You can access the transcript of today's U.S. Supreme Court oral argument in Ricci v. DeStefano, No. 07-1428, by clicking here.

2. "Supreme Court looks at race factor in hiring and promotions; Justices hear an appeal by white firefighters from Connecticut, who say their promotional exam results were thrown out when officials realized it would mean no black colleagues would be promoted": David G. Savage of The Los Angeles Times has this news update. And this evening's broadcast of NPR's "All Things Considered" contained an audio segment entitled "Justices Weigh Bias In Promotions Test" (RealPlayer required) featuring Nina Totenberg.

3. "Justices Explore Role Race May Play in Employment": Adam Liptak has this article today in The New York Times.

Today in The Washington Post, Robert Barnes reports that "Justices Weigh Anti-Bias Move's Impact on Whites." In addition, columnist Dana Milbank has a "Washington Sketch" essay entitled "The Supremes Sing the Oldies."

David G. Savage of The Los Angeles Times reports that "Supreme Court weighs race in hiring and promotions; The justices hear an appeal by white firefighters from Connecticut, who say their exam results were thrown out when city officials realized it would mean no black colleagues would be promoted."

Joan Biskupic of USA Today reports that "Court tackles racial bias in work promotions; White firefighters allege discrimination."

In The Wall Street Journal, Jess Bravin reports that "High Court Weighs Bias in Firefighters' Test."

Warren Richey of The Christian Science Monitor reports that "Reverse-discrimination case splits Supreme Court; Justice Kennedy appears to be the tiebreaking vote on whether New Haven, Conn., discriminated against white firefighters."

The Hartford Courant reports that "U.S. Supreme Court Hears New Haven Firefighters' Reverse Discrimination Arguments."

law.com's Tony Mauro reports that "All Eyes on Kennedy in Firefighters Discrimination Case at High Court."

And The Yale Daily News reports that "Race bias case divides Court."

And here is a piece I wrote about the same issue almost 20 years ago: White Firefighters, Hank Aaron, and Affirmative Action

9th Circuit Incorporates 2d Amendment

Even a broken clock is correct twice a day.

Here is a post from the Faculty Lounge blog:

The Ninth [Circuit] just decided Nordyke v. King. In so doing the court ruled that the due process clause of the Fourteenth Amendment incorporates the individual Second Amendment right that was found to exist in DC v. Heller. The Ninth Ciruit concluded that an individual right to firearms possession was deeply rooted in our national hsitory and tradition; thus, the Second Amendment guarantee applies to the states. Alameda County, California enacted an ordinance forbidding firearms possession on county property, thus precluding private gun shows that had been held on the county fairgrounds. Although the Second Amendment right applied to the county, its ordinance did not "directly impede the efficacy of self-defense" and so did not violate the right.

Early Thoughts on Summum

I was re-reading Summum recently for my Seminar. And here is something that struck me about Justice Alito's opinion.

He starts off giving a tribute to the essential nature of government speech. He says:

-- "the Free Speech Clause... does not regulate government speech"

-- "a government entity has the right to speak for itself"

--government is "entitled to say what it wishes"

--government may "select the views it wants to express"

--"It is the very business of government to favor and disfavor points of view"

--"it is not easy to imagine how government could function if it lacked this freedom"

--"To govern, government has to say something, and a First Amendment heckler's veto of any forced contribution to raising the government's voice in the 'marketplace of ideas' would be out of the question."

Yet, without missing a beat or apparently even being aware of the contradiction, Alito goes on to say that of course "government speech must comport with the Establishment Clause."

Why should this be so? Why should the Court be so ready to accept a "heckler's veto" against passive government speech--such as a nativity display in a public park acknowledging the fact of the Christmas holiday? Why should we think that the government's critically important right to say what it wishes and to express the viewpoints it chooses is subject to being enjoined at the whim of any citizen who is offended by the government's message acknowledging a religious holiday? How could the doctrine of incorporation, which protects only "liberty interests" against state deprivations, give a citizen the right to restrict government from "saying what it wishes" by means of a passive display that restricts the liberty of no one, since all one need do if one is offended by a passive display recognizing a religious holiday is to avert one's eye? Is the "endorsement test" a liberty-protecting test, or is it a structural limitation on government that somehow was mistakenly incorporated as a "liberty" under the 14th Amendment?

Are hecklers' vetoes bad except when they are good?

These are the questions that keep me up late at night pondering the inconsistencies of the Court's treatment of government speech.

I sent this post of mine to a First Amendment Law Prof listserv and it generated the following debate:

Part One

Prof. Brownstein replies to me:

Just a few quick points.

1. There is nothing in Justice Alito's comments that limit his remarks about government speech to "passive" government speech. Government can say what it wants to say actively or passively. If government has unlimited discretion in communicating its own messages and that power is not limited by the Establishment Clause, why can't government proselytize in favor of particular faiths.

2. You could substitute spending for speech in most of Alito's comments. Government has tremendous discretion in deciding how it will spend its money. This power is not limited by the Free Speech Clause. But many of us would argue that the Establishment Clause constrains the government's power to subsidize the religious activities of particular faiths and not others.

3. Government may express passive messages in places other than public property. Suppose the government purchased a large cross and requested permission to locate it on the grounds of a particular church that it favored. Would that violate the Establishment Clause? If the government can single out a particular faith community's religious message and adopt it as its own and dedicate public property as the site for the communication of that message -- all in the name of unrestricted government speech -- why can't the government create its own religious display and exhibit it on private property that it selects (with the owner's permission)?

4. While I certainly appreciate the argument that government attempts to influence the religious beliefs of the community through government speech implicate religious liberty interests, I would have thought that the obvious value at issue in the Summum case was religious equality. The government adopts the religious message of one faith community and rejects the religious message of a different faith community. The analogy here would be a city that adopts religious displays to celebrate Christian holidays, but refuses to accept displays celebrating the holidays of other faith communities. The question raised by Summum that the Court alluded to -- but did not directly address -- is the extent to which the Establishment Clause limits this kind of government preferentialism. I suspect some of Rick's students may raise this point even though it is is not suggested by his comments.

Alan Brownstein

Part Two

I reply to Brownstein:

I appreciate Alan's many good points about the EC. Of course, we all discuss all of these points when we cover the EC in our classes.

My post about Alito's opinion in Summam--in which he describes the government's ability to choose its own message and its own viewpoints as essential to the conduct of government--and then says oh, but religious speech by government is different, raises a different issue which I think also deserves discussion in the classroom.

Certainly, religious equality is important, but so is cultural equality and political equality.

Imagine two passive displays in a public school--one is a nativity scene recognizing the fact that many in the community are celebrating Christmas, and the other is a gay pride display which says "support gay equality and stop homophobia."

Both of these displays are challenged by students who find them offensive--the nativity display by student A who is offended by the schools "endorsement of religion" and the gay pride display by student B, a conservative Christian who is offended by the school's endorsement of the message that his religious belief about human sexuality is wrong and must be "stopped."

Many of you would agree with Justice Alito that the government has a right to take a position denouncing "homophobia" and that we would deny an essential part of government's power if we allow student B a heckler's veto enjoining the government's right to express its message. So long as the government does not coerce student B into affirming his support for the government's viewpoint, his remedy is to avert his eye rather than to silence the government and those who wish to receive the government's message about gay rights.

But not so with student A and his objection to the Christmas display. Even though his liberty is in no way deprived by a passive display recognizing a religious holiday being celebrated by many in the community, he has the right to censor government speech endorsing religion. Suddenly, government speech is not so essential and is subject to a heckler's veto by anyone who takes offense.

If Alito is right and the essence of government is to speak out and take the viewpoints of its choice on issues that come up in the marketplace of ideas, why should the EC be interpreted as protecting a non-liberty interest of hecklers to censor religious viewpoints expressed by state and local governments?

Because student A feels like an outsider as a result of the state's nativity display? But doesn't student B, the religious "homophobe," feel even more like an unwanted outsider when the state endorse the gay pride display and the message that "homophobia" such as his religious beliefs must be stopped?

We all cover the issues Alan raises. But I suspect many of us do not point out the contrast between those offended by the government's secular speech and those offended by the government's religious speech. And even if you accept that the EC is properly incorporated as a "liberty" interest under the 14th Amendment, what explains the Court's many cases protecting non-liberty claims under the judicially-created endorsement test. The endorsement test is a structural test, not a liberty-protecting test.

I think it makes teaching the EC far more interesting when you ask some of these hard questions about the endorsement test as applied via incorporation to the states, and point out the contrast between what Alito's says about government speech in general and what he says only a sentence or two later about the EC as a limitation on the government's power to choose its messages.



Rick Duncan

Part Three

Prof. Laycock joins the debate:

Actually, I raised Rick's question in class today. Not with respect to Summum, which we haven't gotten to yet, but with respect to the difference between the remedy in Barnette and the remedy in Engel and Schempp. Students pretty quickly decided that government couldn't govern if it couldn't try to influence public opinion on political issues. Political issues require a collective decision; we debate and lobby and hold elections and eventually, the people or their elected representatives vote.

There is no need for a collective decision on religion. We don't have to vote to determine what religion we are; we can be a lot of different religions. Election campaigns and voting about what religion we really are would be a wholly unnecessary source of conflict. And letting the self-presumed majority, or noisiest minority, seize control of the government's religion without a vote is no better.

We protect individual liberty by maximizing individual choice, and with respect to religion, there is no reason to limit individual choice even to the extent of permitting government persuasion -- or government propaganda.

Part Four

I respond to Laycock:

I agree with Doug that unlike political issues, "we don't need to vote to determine what religion we are."

But much govt speech is not about political issues and elections. A lot of government speech "endorsing" religion has to do with govt recognizing religious holidays and recognizing religious cultural subgroups in the community or as part of the community's history.

If the EC endorsement test only prohibited government speech taking an official position on religious doctrines such as the doctrine of election or the divinity of Christ, I would not be too concerned (although I might still wonder how anyone has a liberty interest to justify such a claim under the incorporated EC). And frankly, the political process is almost always a sufficient check on govt endorsing specific religious doctrines.

But, of course, much govt religious speech is of the cultural type--Christmas displays or Ten Commandment displays and the like. In other words, it is not about elections, but about recognizing we are a nation of many different communities with many different cultures, including religious subgroups and religious cultures, and religious history.

Religious subgroups are part of the culture as well--if a public school may celebrate Gay Pride Week and Black History Month and Earth Day and Cinco de Mayo, there is no reason to forbid it from recognizing Christmas. Those who are offended by any of these displays can avert their eyes. There is no liberty to silence govt speech recognizing religious holidays and religious subgroups as part of a pluralistic community.

Liberty is best served by protecting the right of the govt to recognize that religion is part of the culture and by protecting the right to receive govt speech of those who wish to view religious displays as part of the govt's recognition of our culture and pluralism. The heckler's veto created by the endorsement test is a liberty-restricting, not a liberty-protecting, interest. It is a right to control what kind of govt expression a willing audience can view, even though the only burden on the Pl is the burden of averting the eye.

This is the kind of issue I love discussing in class. And my students understand that the solution is not as simple as saying that religious speech is different from secular speech under the First Amendment. Sometimes it is, and sometimes it isn't.

Part Five

Prof. Chip Lupu enters:

Rick likes to call the restriction on government religious speech a "heckler's veto," because that's a pejorative. And I must say that the "endorsement" approach, and a focus on "offense" taken by viewers, feeds that way of framing the issue. But there are far more powerful and persuasive arguments against permitting government to express religious sentiments, especially highly sectarian ones. First, there is the age-old problem of destructive fights over whose sentiments will prevail. (In which American cities will Allah be praised? In which ones will officials pray only in the name of Jesus?) Second, our government is supposed to be "under God," not one with God, or identified with a particular conception of God. Totalitarian states co-opt God, and loyalty to God, for their own purposes; the Establishment Clause forbids that in the U.S.

Rick keeps harping on "liberty" and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says "Christians welcome here"? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical).

Chip

Part Six

I respond:

Chip asks me:

"Rick keeps harping on "liberty" and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says "Christians welcome here"? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical)."


Okay. I'll play. If we assume that the EC is not incorporated--or is only incorporated to the extent of protecting substantial burdens on liberty interests (i.e., to protect against forced participation in religious practices or prayer)--then the cross on the lawn of City Hall does not violate the EC (because the EC does not apply at all). But not everything that is bad is constitutionally forbidden and not everything that is good is constitutionally required.

Indeed, the best check on this kind of practice is a combination of state constitutional law and democratic self government.

What about a city that puts up a large "no homophobes allowed" sign on the lawn of city hall. Is that unconstitutional? Does it make many citizens--and almost all conservative religious citizens--feel unwanted in the halls of government? Why should we allow govt to express such hurtful opinions?

The point is that all kinds of government speech is offensive to some citizens, and makes some citizens feel like political and cultural outsiders.

The Court and the law prof community exaggerate the harm caused by governmental religious speech and minimize the harm caused by governmental secular speech. When a citizen seeks to enjoin hurtful secular speech by government, we say we can't allow a heckler's veto to silence govt and the rights of the willing audience. When a citizens seeks to enjoin hurtful religious speech by govt, we say he has a right to silence the govt under the EC.

I guess, to return to my hypothetical (which is more typical than Chip's example), I think the Gay Pride and Nativity displays should be treated the same under the law--either they are both subject to being silenced by an offended passerby, or they both may stand and we tell offended persons to avert their eyes.

Perhaps the First Amendment should be read as a whole (FS, FE, & EC) to forbid government from endorsing any idea that offends anyone's sincere beliefs and conscience. No one should be told that he or she is a political, cultural or religious outsider as a result of the govt's speech. Of course, public schools may have to close and public parks may have to be stripped of most displays if we decide to respect everyone's beliefs from the harm of offensive govt endorsements. But that is the price we pay for a society that respects the hurt feelings of everyone.

Rick Duncan

Part Seven

Prof. Volokh joins:

Chip Lupu writes:

> Rick likes to call the restriction on government religious speech a
"heckler's veto,"
> because that's a pejorative. And I must say that the "endorsement"
approach, and
> a focus on "offense" taken by viewers, feeds that way of framing the
issue. But
> there are far more powerful and persuasive arguments against
permitting
> government to express religious sentiments, especially highly
sectarian ones.
> First, there is the age-old problem of destructive fights over whose
sentiments will
> prevail. (In which American cities will Allah be praised? In which
ones will
> officials pray only in the name of Jesus?)

I appreciate this concern, but let me ask: Since the Court
started viewing the Establishment Clause as a restraint on government
speech, we've seen lots of pretty divisive fights over religion in
public life (school prayer, the Pledge of Allegiance, creationism, and
the like). It's possible that these fights are less divisive and
destructive than the fights that would have happened over these subjects
if the Establishment Clause weren't enforced by courts as a restraint on
government speech. But what reason do we have to be confident of that?
What if Establishment Clause has proven more divisive than the problems
it was supposed to solve?

Eugene

Part Eight

I re-enter:

I think Eugene makes a great point about the divisiveness caused by the endorsement test.

When you enjoin a governmental religious display (such as the Nativity scene I keep "harping" about), you don't merely silence the govt. You also impose silence on the willing audience (private citizens who wish to see the display). These are many of the same people who were told to avert their eyes when they were offended by the Gay Pride display. This adds insult to injury, and results in people reasonably feeling like outsiders who must play a "heads you win tails we lose" game with their secular counterparts in the marketplace of ideas.

Rick Duncan

Part Nine

An exchange between Anthony Decinque and me:

Anthony Decinque writes:

Let's go back to the hypothetical from earlier, the one about the "anti homosexual" sign versus the "Christians welcome" sign. I thought that was a strong hypothetical that really hit to the heart of the issue. Why can the government do A but not B?

The answer, I think, is the one given by Madison. Government might be able to decide whether homosexuality is bad or good. In reality, this question seems too tied up in religion and innate response for government to do very well, but government could take an empirical (Enlightenment!) approach to the issue.

Turning to religion, however, government doesn't seem to have the same ability. The framers were standing at the end of centuries of religious strife that had settled nothing. Instead, there had just been decades and decades of bloody majority-rule. Religious questions do not lend themselves to earthly resolution.

I think the framers decided that religious endorsement by government would never be anything more than thinly-veiled majoritarian oppression. That's certainly a debatable proposition, but I think it was a conclusion that was well informed by history.

Based on that conclusion, religion was ruled off limits.

Duncan responds:

I don't disagree that at least as far as "Congress" is concerned, it has no business legislating whether a particular religion is good or bad. Of course, that is a structural limitation on the power of the Federal Govt to act. The issue for incorporation is how that structural limitation translates into a liberty interest when it is incorporated under the DPC.

But even if govt has no business acting as a Theocracy and legislating good and bad religious doctrines and official prayers, it is certainly the business of govt to adopt policies recognizing that in a pluralistic society many different groups are welcome in public schools and at city hall. My hypo involving the respective challenges to a Gay Pride Display and a Nativity Display in a public school or public park goes to the very essence of state and local governmental power to embrace diversity and pluralism.

What is the message the law sends to religious families in the public schools when it ignores their complaints about a Gay Pride Display but forbids a Christmas Display under the endorsement test? This is not a case of govt taking an official position on religious truths and religious untruths. It is a case of govt exercising its clearly legitimate power to recognize that in a pluralistic society many different groups come together in the public schools and they are all welcome; and those who are offended must avert their eyes, because we don't give them a heckler's veto to enjoin the Welcome Wagon.

Under the endorsement test, the message is very different. Those offended by a display recognizing a religious holiday are empowered to enjoin the welcome sign.

Doug Laycock is certainly correct that religious students are not completely silenced, in the sense that they can go home and put up their own nativity displays in their living rooms. But they are silenced when in school. They must walk through the halls seeing displays recognizing Gay Pride, and Cinco de Mayo, and MLK Day, and Earth Day, and (ironically) Diversity Day, but they must stand by and watch religious displays be torn down at the behest of any offended member of the community. It is literally a game of heads you win, and tails we lose. And they know it. And it hurts. And it harms the cause of public education and community.

I think it was Chip who said I used the term"heckler's veto" because it is a negative word that scores points without further reasoning. But the term "heckler's veto" was used in Summum by Justice Alito to describe those who wish to enjoin govt speech merely because it offends them. Those who attack a Gay Pride display because it offends them are rightly turned away, because they are trying to exercise a heckler's veto. The same is true of those who seek to enjoin Nativity Displays and similar religious displays that offend them. They are trying to silence their fellow citizens who are a willing audience for the welcoming message of these displays.

The law treats one group of hecklers one way; and the other group of hecklers another way. And the message of inequality is clear to religious subgroups who are part of our pluralistic society.