Harry Potter and Free Exercise of Religion

From the Religion Clause blog, a report of a recent case with interesting facts:

"In Cape Girardeau, Missouri yesterday, the ACLU filed suit on behalf of library-assistant Deborah Smith who was suspended for ten days without pay after she refused to work at an event that she said violated her religious beliefs. After she returned, her duties were made more labor intensive. This led her to resign for medical reasons. St. Louis Today reports that Smith refused to take part in a July 2007 event at the Poplar Bluff Public Library that was held to mark the release of the book "Harry Potter and the Deathly Hallows." Library employees were expected to dress as witches and wizards at the event. Smith, a Southern Baptist, believes that the Harry Potter books popularize witchcraft and practice of the occult. Smith's federal lawsuit-- filed after the EEOC and the Missouri Commission on Human Rights upheld her right to sue-- claims that the library's action against her violated her right to the free exercise of religion."

Speaking of Harry Potter, here is something I posted a little while ago.

Room 113 Fixed!!!

Class today--Tuesday--will be held in Room 113.

For Tuesday May 25, 2010

1. Please read the first two assignments in the Free Exercise unit plus Smith case (casebook p. 567-578)

2. Class will be in Room 113!

Pharmacists Sue

From the Religion Clause blog:

In Washington state on Wednesday, two pharmacists and the owner of a supermarket that contains a pharmacy, sued to challenge the state's new rule that requires pharmacies to fill orders for emergency contraceptives. (See prior posting.) The so-called Plan B morning-after pill is now available over-the-counter to adults. Individual pharmacists with religious or moral objections can refuse to supply a customer with the contraceptives only if they can find a co-worker at the same pharmacy to fill the order. The lawsuit filed in federal court in Seattle claims that the new rules violate pharmacists' constitutional rights by requiring them to choose between "their livelihoods and their deeply held religious and moral beliefs." The Associated Press reports on the case. [Thanks to Melissa Rogers for the lead.]

UPDATE:

Here is a copy of the complaint and the motion for a preliminary injunction. The case is Storman's v. Selecky. More on the case is at Constitutionally Correct and in this release from the Alliance Defense Fund which is representing the plaintiffs.

Which Test Do You Prefer?

If you don't like the endorsement test, which test do you like?

The coercion test?

Here is the tough case under the coercion test--what do you do if a particular state puts up displays in all public buildings stating that "Jesus is the Lord and Savior of the World." No one is required to affirm their belief in the statement, no one is required to bow down before it, but it is there in public announcing that the state endorses the religious doctrine that Jesus is Lord and Savior.

If you don't have a problem with that one, what about a state putting up displays in all public buildings stating that "Wicca is the true religion" or that "Jesus was a fraud who has deceived millions of gullible fools."

The coercion test won't prohibit these displays, unless we use a watered-down "Kennedyed" version of the coercion test.

Of course, nothing as extreme as this will happen in the real world, will it? Why not?

Mojave Cross Memorial Case Decided

Over at Scotsblog Lyle Denniston provides a nice summary of the Court's many opinions and factions:

Much ado about a little cross
Salazar v. Buono, 08-472, Opinion recap

Lyle Denniston | Wednesday, April 28th, 2010 1:44 pm

Analysis

A spectator in the Supreme Court chamber Wednesday morning could well have understood that the Justices had just made a major new pronouncement on the constitutionality of placing religious monuments on government property. Justice Anthony M. Kennedy, announcing his opinion and the Court’s ruling in Salazar, et al., v. Buono, spoke with obvious approval of erecting such monuments as tributes to those who died in military combat, and of the overall civic virtue in having religious symbols displayed on government grounds.

Kennedy was paraphrasing an opinion that said “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm….The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.” The problem, though, is that those expressions had only three votes, and thus did not speak for the Court. A tangled case, which had been through four separate stages in court and had led to a new law passed by Congress, ended in a tangled set of six opinions from the Supreme Court, not one representing a majority. The ruling, though, can be sorted out, and, in the end, it does not reach any final outcome.

First, the votes can be counted up:

** There are seven votes for the notion that a retired National Park Service employee had a legal right to take to court his complaint about a small Christian cross standing in a remote spot in a massive piece of federal property, the Mojave National Preserve in California. Two Justices dissented explicitly on that point. Another citizen troubled about such displays, however, could not read the Court’s conclusion on the right to sue in this case as necessarily clearing the way for a challenge in another case with a different history.

** There are five votes for the conclusion that a federal judge was wrong in barring a congressionally-ordered transfer of the plot of ground on which the cross stands to private ownership, although that result came from two different kinds of reasoning: three Justices said it was wrong as a legal proposition, while two said the Park Service employee should never have been allowed to pursue his complaint. Four other Justices would have upheld the judge’s order (for two different reasons).

** Despite the conclusion that the federal judge was wrong on that point, the Court voted 4-4 to send the case back to that judge to take another look, more closely, at Congress’ action. The four votes in favor of sending the case back were supported by two different rationales. Four other Justices opposed the remand, but that, too, resulted from two different approaches. With the Court split evenly on that issue, though, the case definitely will go back because that is the formal “judgment” of the Court, which had five votes behind it (based on three different rationales).

** There were three votes for the notion that the Court should not even have decided this case: two Justices said so because of their view that the cross’s challenger had no right to be in court, and one said so because there was “no federal question of general significance in this case.” Those views did not prevail.

Perhaps the most decisive thing the Court had to say was this comment in the lead opinion, by Justice Kennedy: “To date, this Court’s jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules.”

Second, some impressions come from reading between the lines. Based on what was actually said, and from the known positions of some Justices on the issue of religious monuments on government property, this conclusion can be advanced tentatively: the little cross standing atop Sunrise Rock in the Mojave is likely to win out in the end, if the Veterans of Foreign Wars wants to remove the present plywood cover that obscures it from view, and put up a sign claiming the cross to be a tribute to war dead, rather than to the Christian faith. And Congress might well draw the conclusion that, at some point, five of the present Justices may well allow the lawmakers to keep a religious monument on government property by transferring the plot of ground on which it stands to private ownership. The latter, if it does occur at some point, would be a new constitutional declaration, perhaps coming close to being a “categorical rule.”

Justice Kennedy’s favorable comments about religious displays “in the public realm” were supported by Chief Justice John G. Roberts, Jr., and by Justice Samuel A. Alito, Jr. (who expressed even more favorable comments in his separate opinion). To those three probably could be added, in what Justice Antonin Scalia said would have to be “a proper case” in the future, the votes of Justices Scalia and Clarence Thomas, because in prior disputes they have supported such displays.

On the other side, three Justices — Ruth Bader Ginsburg and Sonia Sotomayor, plus the soon-to-retire John Paul Stevens — made it clear on Wednesday that they remain quite firmly opposed to such displays. And Justice Stephen G. Breyer, who has been on both sides of the issue in the past, this time voted to uphold the court order against the display in the Mojave even while saying that the Court should not have taken on the dispute in the first place.

The Court obviously labored over the ruling; it was the earliest argued case this Term still awaiting a decision, and the crafting of six opinions no doubt took up the time since it was heard on the third day of the Term.

And here are some more links from How Appealing:

Access online today's ruling of the U.S. Supreme Court in an argued case: The Court today issued its ruling in Salazar v. Buono, No. 08-472, the case involving the Mojave cross.

You can access the Court's ruling at this link and the oral argument transcript at this link.

For Today Thursday May 20

I would like to discuss whether the Lincoln Ordinance on picketing violates the Establishment Clause.

Read the Ordinance thinking about EC issues.

See y'all in class.

Rick Duncan

Prof. Jim Lindgren on "Separation of Church and State"

Over at the Volokh blog:

How Separation of Church and State Was Read Into the Constitution (Hint: the KKK got its way)

Jim Lindgren • October 20, 2010 3:38 pm

The flap over Christine O’Donnell’s debate comment suggests that many people still don’t know how Separation of Church and State became part of the law of the First Amendment.
On this, I reprint part of an old post from 2005:

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.
7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.
8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.
9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.
10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.
11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.
12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

"Separation of Church and State"

Please read these two links about separation of church and state and the Constitution:

1. Dreisbach

2. Lindgren

The Bible and the New York Times

Cal Thomas likes to quip that there are two things he reads each day--the Bible and the New York Times, because he likes "to keep up with what both sides have to say." There is a very good essay in the Times by Prof. Stanley Fish, a piece called God Talk.

I am not assigning it, but it is worth reading at the start of a course on Religion and the Constitution.

Update: Part Two of Fish's article appears in the NYT here: God Talk Part 2