For Thursday's Class and Friday's Class

Please read Grutter (p. 783 -795). We will discuss Grutter in tandem with United States v. Virginia (the VMI case).

Question in which of these cases did the Court actually apply Strict Scrutiny and in which Intermediate Scrutiny?

For our last class on Friday, just be sure you have read through these assignments:

22 Casebook p. 691-730
23 Casebook p. 730-742

Hope you had a great Thanksgiving and remembered your.....

Thanksgiving BYC: Practice your digestive and carving skills.

SCOTUS Deference to Michigan Law vs. VMI

Why did the Court defer to the curricular expertise of the Michigan Law faculty under strict scrutiny, but not to the curricular expertise of the VMI faculty under intermediate scrutiny?

I wonder if Bobby Braddock has an insight on this issue in his song about cultural differences between the "jet set" and the "Chevro-let set":

No, We're not the jet set
We're the old Chevro-let set
Our steak and martinis
Is draft beer with weenies
Our Bach and Tchaikovsky
Is Haggard and Husky
No, we're not the jet set
We're the old Chevro-let set
But ain't we got love

Did the Court defer to fellow academic "jet setters" at Michigan Law while refusing to defer to "Chevro-let setters" on the VMI faculty?

Does cultural power, as opposed to the rule of law, explain at least some of the Court's SDP and Equal Protection decisions?

SCOTUSblog Post today on Roe v. Wade

FYI:

Link

For Thursdays Class: Saenz v. Roe

I will ask you all to apply Saenz v. Roe (p. 924) and the P&I Clause of the 14th to non-resident tuition at state universities. Suppose, for example, a student, (let's call him Jack Bauer) moves to Nebraska from, say, California, to attend law school. The student wishes to become a citizen of Nebraska, and in furtherance of this wish, he registers his car in Nebraska, enrolls his children in the Lincoln public schools, registers to vote in Nebraska, joins a church in Nebraska, purchases a home (and pays property taxes on his home) in Nebraska, and pays "resident" income taxes to Nebraska. Yet, despite all this, UNL insists that he is a nonresident and charges him nonresident tuition (while allowing "resident" illegal aliens to pay in-state tuition). What are Jack's rights under the P&I Clause and Saenz v. Roe?

C-Span Landmark case Video of Slaughter Cases

Here is a link if you would like still more information about the Slaughterhouse Cases:

Link

Historic Disagreement Over the Size and Purpose of Government

As we work through these cases concerning Obamacare and the relative power of Congress vs. the states, we should realize that we are in the middle of an historic debate about how then we should live and how are we to be governed. Here is a excerpt from a recent Wall Street Journal article that I think captures the struggle of our times well:

America's two major political parties have arrived at a point where they hold vastly different views on levels of public spending, the entitlement state and the purpose and structure of the country's tax system. This is not some routine spat over a few line items in the budget. It is an historic disagreement over the role of government.

I would add that there is also an historic disagreement among us over the social issues, over the meaning and purpose of marriage and family, and over which level of government should decide these foundational issues.

It is a privilege to live in interesting times!

RLUIPA and Commerce Clause

Does Congress have power under the Commerce Clause to enact RLUIPA?(link)

Class Schedule--UPDATE

I will be speaking at Detroit Mercy Law School on Thursday Sept. 24 and conducting a CLE at the Nebraska Bar Annual Meeting on Friday October 9. So we will not be having class on those dates.

I plan to make up one of the classes by going 5 minutes over every class (i.e. until 11:50).

Update: In lieu of a physical make-up class for the second class cancellation, I would like you all to view Prof. Todd Zywicki's talk on "Should We Repeal the 17th Amendment." Here is a link to the YouTube video.

We will discuss the 17th Amendment and the Senate next Friday (Sept. 25) so please view this video before then.

For This Thursday's Class--Something More to read

For our discussion on the second assignment about the "Great Debate" (Handout No. 2) regarding original understanding vs. the "Living Constitution," I would also like you to read the Sup Ct's recent same-sex marriage decision. Here is a link:

Obergefell v Hodges (2015)
 

For now, I would like you to focus on the question whether Obergefell is a legitimate interpretation of the Written Constitution or whether it is an exercise of raw judicial power. Are you convinced that the Constitution was written to provide a redefinition of marriage? Is this an issue committed to the federal judiciary by the written Constitution? Or is it an issue that should be decided by the process of democratic self-government in the states?

In other words, let's use Obergefell as a case study of the Great Debate over how the Constitution should be read.

So, to be clear, for Thursday's class the Assignment is Handout No. 2 (on the Great Debate) plus Obergefell.

Friday August 28 What We Will Cover

As I said today in class, on Friday we will conclude our discussion of Marbury and move on to discuss Ex Parte McCardle (i.e. we will cover pages 1-37 and 37-43). I want to skip over Assignment 2 until next Thursday when we will have an entire class to discuss it.

Sorry if I did not make this as clear as I could have today in class.

Abortion and Disability Discrimination

Ohio is about to prohibit "abortions based on a fetal diagnosis of Down syndrome."

A little know fact about abortion in America is that the abortion rate for babies diagnosed with Down Syndrome is approaching genocide (link). Sex selection abortion is also fairly common.

We will study the Supreme Court's abortion jurisprudence at length in a few weeks, but for now here is an article from the NYT critical of attempts to prohibit abortions performed because the pregnant woman does not wish to give birth to a baby with a disability such as Downs.

For now, a few questions for you to mull over:

1. Should the law allow Down selection abortions?

2. What about abortions based upon the race of, say, a biracial unborn child?

3. What about abortions based upon the gender of the unborn boy or girl?

4. If science isolates a sexual orientation gene, should abortions based upon sexual orientation be lawful?

5. Or should a pregnant woman have a right to abortion-on-demand for any reason that she chooses?

Handouts

The Handouts are available in the Handout Racks near the South Faculty Suite on 2d Floor of Law Library.

Monday's Assignmnet: Dariano (flag tee shirt case)

So, I just found out that the link to the Dariano case is not working.

So, don't worry about reading this one. I will give you the facts of the case as a hypo, and we will discuss it as a hypo.


Link

July 4 Thoughts

I am not thinking about 1776 this July 4th, but rather about the importance of religious liberty in this new America, one that is nothing like the America I was raised in.

So let me share a wonderful story with you:

The Rabbi’s Tale

  This is a story told by Rabbi Daniel Lapin in his book The Severed Flower.   I am quoting Rabbi Lapin:

    . . . let me tell you what happened to one of my teachers, a great rabbi.  On a trip to Israel he found himself seated next to the head of the Israeli socialist movement.  As the plane took off, my teachers’ son, sitting several rows behind, came forward and said, ‘Father, let me take your shoes; I have your slippers here.  You know how your feet swell on the airplane.’  A few minutes later, he came and said, ‘Here are the sandwiches Mother sent; I know you don’t like the airline food.’

    This went on in similar fashion for some time, and finally, the head of Israel’s socialist movement turned to my teacher and said, ‘I don’t get this.  I have four sons.  They’re grown now.  But in all my life I don’t recall them ever offering to do anything at all for me.  Why is your son doing all of this?'

    And the rabbi said, ‘You have to understand.  You mustn’t blame yourself.  Your sons are faithful to your teachings, and my sons are faithful to my teachings.  It’s simple, you see.  You made the decision to teach your sons that they are descended from apes.  That means that you are one generation closer to the ape than they.  And that means that it is only proper and appropriate that you acknowledge their status and that you serve them.  But, you see, I chose to teach my sons that we came from God Himself.  And that puts me one generation closer to the ultimate truth, and that means it’s only appropriate that they treat me accordingly.

    Somehow, I think this story is a good capstone for this course because its about the power of ideas and the liberty to live by those ideas and to transmit them to to your children.

    Good luck on your exams next week and have a great holiday weekend.

First Ten--Tuesday June 30

Let's spend the first 10 minutes discussing the "metaphysical forum" issue in Locke v. Davey. In FN 3, Rehnquist just dismisses this issue with a conclusory assertion ("the Promise Scholarship Program is not a forum for speech"). But he gives no reasoning.

So, think about the forum issue. Is this case more like Rosenberger, in which a pool of money is a forum for the3 facilitation of private speech, or is it more like a government cheese program in which the government subsidizes Swiss Cheese but not Cheddar Cheese?

Be prepared to argue both sides of this issue.

Hint: Suppose the Promise Scholarship Program allowed funds to be used to pursue any major except "gender studies from a feminist perspective?" Does this raise any Free Speech issues?

Hobby Lobby Oral Arg Link

link

Remember, this will be our second and final reaction paper assignment. Rather than listen together in class, please access it at home via the link above (or by going to Oyez Oyez's web site).We will discuss the oral argument Tuesday when we discuss the Hobby Lobby decision.

Hobby Lobby Oral Argument

Wow! I just listened to it again.

This is a great argument--from both sides! You can learn a lot fro studying this one.

Susan Stabile on Religious Liberty After SSM Decision

Friday, June 26, 2015

"Serious Questions About Religious Liberty"

By Susan Stabile

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From Justice Roberts' dissenting opinion in today's marriage ruling:
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for 28 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

June 26, 2015 in Stabile, Susan | Permalink

Rosenberger Oral Argument

On Monday, we will listen to the SCOTUS oral arguments in the Rosenberger case.

No reaction paper is assigned for this argument.

Today's First 10 Minutes

I love it when students share their views in class, especially when they dissent from a view I might have expressed.

Today, I want to give dissenting opinions a special opportunity to speak out. As you know, I believe Marsh and Town of Greece are correctly decided. But I bet some of you disagree.

So, please share your dissenting views about legislative prayer and the EC with the class today during the first 10..

Court: Army Must Let Sikh Student Wear Beard in ROTC

Becket Fund press release:

Court: Army Must Let Sikh Student Wear Beard in ROTC

Colorful, detailed opinion reminds government of federal religious liberty protections

Washington, D.C. – A federal court ordered the Army to allow a Sikh college student to join his college’s NROTC unit without having to shave his beard, cut his hair or remove his turban. The detailed and colorful 49-page opinion states that “given the tens of thousands of exceptions the Army has already made to its grooming and uniform policies …. the Army’s refusal to permit him to do so while adhering to his faith cannot survive” the protections in the federal Religious Freedom Restoration Act.  

The court also reminded the Army of the exemptions it had granted, including grandfathering 197,102 soldiers who had non-conforming tattoos as well as issuing 183 exceptions to the current tattoo policy including “a vampire Mickey Mouse” tattoo. 

According to court documents, the student, Iknoor Singh, a junior at Hofstra University, “hopes to serve in Military Intelligence, and he speaks Urdu, Hindi, and Punjabi, as well as English.”

“All this Sikh student wants to do is to serve his country,” said Eric Baxter, Senior Counsel at the Becket Fund for Religious Liberty. “The military cannot issue uniform exemptions for secular reasons but then refuse to issue them for religious reasons. The Religious Freedom Restoration Act was written and passed nearly unanimously by Congress precisely to protect the rights of individuals such as Mr. Singh.”

The opinion, issued last Friday, June 12, relied heavily on the standard for religious protection set out in Supreme Court cases such as Holt v. Hobbs and Hobby Lobby. Both cases were brought to the Supreme Court by the Becket Fund for Religious Liberty.

“When the government singles out religious people and refuses to protect their rights, our democracy is impoverished,” added Baxter. “The court’s opinion is not only good for Sikhs, it is good for our country.”

Sikhs such as Major Kamaljeet Singh Kalsi, an Army Doctor who served in Afghanistan, earning a Bronze Star, have been advocating for their ability to serve in the military. In a Congressional policy hearing in early 2014, Major Kalsi stated:  “I love the Army, I love the military. It’s become a big part of me. Sikhs everywhere are very patriotic. We just want to serve our nation…We just want to serve, to become part of the community, without having to give up what is our religious uniform.”

 For centuries, the bravery and skill of Sikhs has been praised by many leaders. Among the most well known references to their courage is Winston Churchill’s: “British people are highly indebted and obliged to Sikhs for a long time. I know that within this century we needed their help twice [in two world wars] and they did help us very well. As a result of their timely help, we are today able to live with honour, dignity, and independence. In the war, they fought and died for us, wearing the turbans.

Becket Fund attorneys are available to comment on the decision.

For more information or to arrange an interview with a Becket Fund attorney, please contact Melinda Skea at  mskea@becketfund.org or 202.349.7224. 

The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including  Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians. Its recent cases include three major Supreme Court victories: the landmark ruling in Burwell v. Hobby Lobby, and the 9-0 rulings in Holt v. Hobbs and Hosanna-Tabor v. EEOC, the latter of which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”

First 10 Today Thursday June 11

Let's take a few minutes at the start of class to discuss the problem posed in Handout 2 (teacher John Spokes and his desire to change how he teaches about evolution in public school biology class).

Edwards v. Aguillard (and Santa Fe)--Some Things to Think About

Who should decide the content of the curriculum and the program for commencement for local schools?

Local school authorities? Teachers and principals? Parents? Federal Courts?

Should the answer here be controlled by the incorporated Establishment Clause?

Or by the Tenth Amendment and the process of democratic self-government in the states?

Do these cases demonstrate the need for school choice, for a system that allows parents to decide where (and how) to educate their children without losing the educational funding paid for by their tax dollars?

In America, there is no longer a common understanding about what is true, what is good, and what is beautiful.

Just think about the things we cannot agree on, things that are often covered in K-12 curricula:

--Evolution vs. Creation. Even if a school decides to teach evolution, should it also take care to focus on whether there is any real meaning and purpose to life in a world that came about as a result of a random process of natural selection? If so, what is the source of this meaning? Is it an objective source of meaning, or only our collective best subjective guess about the purpose of life? Is it consistent with, say, what the Bible teaches about life? Or only with certain interpretations of the Bible? Which interpretations are the "true" ones and which are false or based upon ignorance or misunderstanding or pride and hubris? Says who?

--What should children be taught about human sexuality, sexual orientation and marriage and family and human reproduction? Again, is there an objective reality about these issues, or not?

--What should children be taught about history and government? Does the Constitution create a large and powerful national government with weak and dependent states? Which liberties are fundamental? And what is the source of those liberties? Were we "endowed by out Creator" with these liberties? Or do we look to unelected judges to endow us with ones they like and deprive us of ones they don't like?

--What should our children be taught about environmentalism vs property rights? About taxes and social safety nets?

--How then should we live?What constitutes good character?

I could go on forever with this list.

And it is obvious that there are no common truths or common values with respect to these issues. Whose version of the truth should our children be taught? Who decides which version or versions of truth and values our children should be exposed to in school? And who decides which versions of the truth and values will not be included in the curriculum?

If religious versions of the truth are excluded from the curriculum, is the curriculum neutral between religion and non-religion? Between those who believe in secular perspectives and those who believe in religious perspectives?

Between those who think that prayer belongs in education and those who think it does not?

Edwards v. Aguillard and Impressionable Schoolchildren

Notice on page 1631 the Court says:

The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools....Students in such institutions are impressionable and their attendance is involuntary....The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure.

Which way should this cut when considering the Constitutionality of the Balanced Treatment act? Children who believe in Creation are also impressionable and their attendance at public schools is also involuntary. No? Isn't this exactly the purpose of the Balanced Treatment act, to provide more views and more evidence concerning the issue of human origins and then allow the children to make up their own minds about what to believe?


Now consider what Justice Kennedy says about children being exposed  in school to ideas and messages they perceive as “distasteful or immoral or absurd” or even “offensive and irreligious." Quoting from my a work in progress of mine:

“To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And tolerance presupposes some mutuality of obligation.” In other words, the remedy for students offended by ideas they are exposed to in public schools is not to censor the speech of their teachers and fellow students, but rather to have “confidence in [their] own ability to accept or reject [the] ideas" of others and to respond to what they believe to be false ideas with their own version of the truth.

---

Why shouldn't all children--both those who believe in human origin by evolution and those who believe in Creation by God-- be expected to tolerate different points of view concerning the question of human origins?

Secular Purpose in Edwards

Consider this excerpt from Justice Scalia's dissenting opinion in Edwards:

The Louisiana Legislature explicitly set forth its secular purpose *627 ("protecting academic freedom") in the very text of the Act. La.Rev.Stat. § 17:286.2 (West 1982). We have in the past repeatedly relied upon or deferred to such expressions, see, e.g., Committee for Public Education & Religious Liberty v. Regan, 444 U.S., at 654, 100 S.Ct., at 846-47; Meek v. Pittenger, 421 U.S., at 363, 367-368, 95 S.Ct., at 1764-1765; Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S., at 773, 93 S.Ct., at 2965-66; Levitt v. Committee for Public Education & Religious Liberty, 413 U.S., at 479-480, n. 7, 93 S.Ct., at 2819 n. 7; Tilton v. Richardson, 403 U.S., at 678-679, 91 S.Ct., at 2095-96 (plurality opinion); Lemon v. Kurtzman, 403 U.S., at 613, 91 S.Ct., at 2111; Board of Education v. Allen, 392 U.S., at 243, 88 S.Ct., at 1926.The Court seeks to evade the force of this expression of purpose by stubbornly misinterpreting it, and then finding that the provisions of the Act do not advance that misinterpreted purpose, thereby showing it to be a sham. The Court first surmises that "academic freedom" means "enhancing the freedom of teachers to teach what they will," ante, at 2578 --even though "academic freedom" in that sense has little scope in the structured elementary and secondary curriculums with which the Act is concerned. Alternatively, the Court suggests that it might mean "maximiz[ing] the comprehensiveness and effectiveness of science instruction," ante, at 2579 --though that is an exceedingly strange interpretation of the words, and one that is refuted on the very face of the statute. See § 17:286.5. Had the Court devoted to this central question of the meaning of the legislatively expressed purpose a small fraction of the research into legislative history that produced its quotations of religiously motivated statements by individual legislators, it would have discerned quite readily what "academic freedom" meant: students' freedom from indoctrination. The legislature wanted to ensure that students would be free to decide for themselves how life began, based upon a fair and balanced presentation of the scientific evidence--that is, to protect "the right of each [student] voluntarily to determine what to believe (and what not to believe) free of any coercive pressures from the State." *628 Grand Rapids School District v. Ball, 473 U.S., at 385, 105 S.Ct., at 3223. The legislature did not care whether the topic of origins was taught; it simply wished to ensure that when the topic was taught, students would receive " 'all of the evidence.' " Ante, at 2579 (quoting Tr. of Oral Arg. 60).As originally introduced, the "purpose" section of the Balanced Treatment Act read: "This Chapter is enacted for the purposes of protecting academic freedom ... of students ... and assisting students in their search for truth." 1 App. E-292 (emphasis added). Among the proposed findings of fact contained in the original version of the bill was the following: "Public school instruction in only evolution-science ... violates the principle of academic freedom because it denies students a choice between scientific models and instead indoctrinates them in evolution science alone." Id., at E-295 (emphasis added). [FN5] Senator Keith unquestionably understood "academic freedom" to mean "freedom **2602 from indoctrination." See id., at E-36 (purpose of bill is "to protect academic freedom by providing student choice"); id., at E-283 (purpose of bill is to protect "academic freedom" by giving students a "choice" rather than subjecting them to "indoctrination on origins").

Are you still convinced that the Balanced Treatment Act had no secular purpose?

Contrast these two purposes:

1. The religious purpose of "advanc[ing] the religious viewpoint that a supernatural being created humankind." (p. 1848)

2. The secular purpose of protecting impressionable children, who are a captive audience in the public schools, from a one-sided presentation about human origins.

Edwards v. Aguillard: Some Questions

The question to think about when thinking about evolution in the public schools is to ask yourself why is this issue so important to both sides of the controversy?

What is at stake in the outcome of this issue? Is it:

God exists therefore? vs. God does not exist therefore?

Or is it competing views of the nature of God?

Should public schools be involved in resolving these kinds of questions? If so, should the government educators take sides? Or merely acknowledge the existence of the controversy and the competing views?

Just some things to think about.

Now consider the following post from Religion Clause blog on proposed recent legislation:

The National Center for Science Education reports that the first anti-evolution bill to be introduced in a legislature in 2009 is Oklahoma's proposed Scientific Education and Academic Freedom Act (SB 320). The NCSE posting also sets out the full text of the bill which provides in part:

educational authorities in this state shall ... endeavor to assist teachers to find more effective ways to present the science curriculum where it addresses scientific controversies. Toward this end, teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories pertinent to the course being taught....

It also provides that:

Students may be evaluated based upon their understanding of course materials, but no student in any public school or institution shall be penalized in any way because the student may subscribe to a particular position on scientific theories.

This act only protects the teaching of scientific information, and this act shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.

Does this proposed law violate the EC?

Cobb County Case

Here is an excerpt from my article on Heckler's Vetoes:

a.      When Insiders Are Outsiders and Outsiders Are Insiders: Cobb v. Selman County School District as a Heckler’s Veto

                In Allegheny County, Justice Kennedy criticized the endorsement test as “flawed in its fundamentals and unworkable in practice.”[1] It is a subjective and indeterminate test, “an incoherent mess” that can be used to reach any result you wish it to reach.[2] Interestingly, a recent empirical study of Establishment Clause decisions in federal courts concluded that “the Supreme Court’s Establishment Clause jurisprudence invites even the most conscientious of judges to draw deeply on personal reactions to religious symbols and political attitudes about religious influence on public institutions or policies. Sadly, the Court’s Establishment Clause doctrine has become an attractive nuisance for political judging.”[3]

Perhaps there is no better example of the ambiguous and subjective nature of the endorsement test than Selman v. Cobb County School Dist.,[4] a case in which a federal district judge considered the constitutionality of a local school board’s attempt to deal with the coverage of evolution in public school science classes. The facts of the case are simple. Cobb County school officials adopted a policy designed to “strengthen evolution instruction”[5] in the schools and, in pursuit of this goal, adopted a science textbook that provided “a comprehensive perspective of current scientific thinking regarding theory of origins.”[6]

When some parents expressed concern about this, the school board responded to these complaints by requiring the following sticker to be placed in the science textbooks: “This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.”[7]

Of course, other parents objected to the Sticker. One such offended observer opined that she was alarmed because she “felt that the Sticker ‘came from a religious source’ because, in her opinion, religious people are the only people who ever challenge evolution.”[8] Some of these offended observers sued in federal district court to challenge the sticker’s constitutionality under the incorporated Establishment Clause.[9]

District Judge Cooper applied the endorsement test to the Sticker and found that it served two clear secular purposes:

First, the Sticker fosters critical thinking by encouraging students to learn about evolution and to make their own assessment regarding its merit. Second, by presenting evolution in a manner that is not unnecessarily hostile, the Sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution.[10]

He thus concluded the Sticker satisfied the purpose prong of the Lemon/endorsement test and went on to consider “whether the statement at issue in fact conveys a message of endorsement or disapproval of religion to an informed, reasonable observer.”[11]

Astonishingly, Judge Cooper decided that a “reasonable observer would interpret the Sticker to convey a message of endorsement of religion,”[12] and explained his conclusion as follows:

That is, the Sticker sends a message to those who oppose evolution for religious reasons that they are favored members of the political community, while the Sticker sends a message to those who believe in evolution that they are political outsiders. This is particularly so in a case such as this one involving impressionable public school students who are likely to view the message on the Sticker as a union of church and state.[13]

In other words, the “political outsiders” are those whose views are comprehensively taught inside the textbook and the “favored” political insiders are those who get only the Sticker. Even an impressionable child knows that the real insiders are those who get the cake and the real outsiders are those who are allowed only to lick the crumbs off the table. The Sticker was a consolation prize designed to assure the real outsiders that the school’s decision to strengthen its teaching of evolution was “not unnecessarily hostile” to parents whose religious beliefs contradict what their children are being taught in the public school classroom. This message endorses, not religion, but rather religious tolerance and respect “for students and parents whose beliefs may conflict with the teaching of evolution.”[14]

The Sticker did not deprive any parent or any child of any liberty protected by the First Amendment. However, by censoring the Sticker to appease the offended observers, Judge Cooper sent a clear message to those whose religious beliefs deny human evolution that they are entitled neither to the cake nor the crumbs. This is a court-ordered heckler’s veto that denies the Sticker’s willing audience access to a message designed, not to endorse their religion, but rather to assure them that no disrespect was intended by the school board’s curricular decisions. The incorporated Establishment Clause was employed by the court in Selman not to advance liberty but rather to restrict liberty. In a tolerant and pluralistic society, this case should come out the other way.

---

[1] Allegheny County, 492 U.S. at 669 (Kennedy, J., concurring in part and dissenting in part).

[2] Steven G. Gey, Vestiges of the Establishment Clause, 5 First Amendment L. Rev. 1, 4 (2006) (“One of the few things scholars of every stripe seem to agree about is the proposition that the Court’s Establishment Clause jurisprudence is an incoherent mess.”) See also American Jewish Congress v. Chicago, 827 F.2d 120, 129 (7^th Cir. 1987) (Easterbrook, J., dissenting) (under the Court’s Establishment Clause jurisprudence, “a judge can do little but announce his gestalt.”)

[3] Gregory C. Sisk & Michael Heise, Ideology “All The Way Down”? An Empirical Study of Establishment Clause Decisions In The Federal Courts, 110 Mich. L. Rev. 1201, 1263 (2012). This study demonstrated that the most important variable in predicting the outcome of Establishment Clause decisions in the lower federal courts was whether the judge was appointed by a Democratic president or a Republican president. Id. at 1204-05. The authors further concluded that “the subjectivity of Establishment Clause doctrine has passed the point of tolerability” and, as a result, “the door to unrestrained political judging has been thrown wide open.” Id. at 1207.

[4] 390 F. Supp. 2d 1286 (N.D. Ga. 2005), vacated 449 F. 3d 1320 (11th Cir. 2006)

[5] Id. at 1290.

[6] Id. at 1291.

[7] Id. at 1292.

[8] Id. at 1297.

[9] Id. at 1288.

[10] Id. at 1305.

[11] Id.

[12] Id. at 1306.

[13] Id.

[14] Id. at 1305.

Recent Prayer in School Case Settled

From ReligionClause blog:

 

Wednesday, June 10, 2015

Suit Challenging Prayer During School Free Time Dismissed By Parties

As reported today by the Colorado Springs Gazette, a Colorado federal district court on June 3, upon motion by plaintiffs (full text), dismissed a lawsuit (see prior posting) against Colorado Spring's Academy School District #20.  At issue was students' rights to gather together for prayer and religious discussion during free periods. The parties disagree however over how to characterize the events leading up to the dismissal.  Alliance Defending Freedom in a press release says the school backed off its policy of barring prayer and religious discussion during lunch periods, allowing it only before and after school.  The school says that the issue was never lunchtime, but instead whether students could gather during so-called Seminar period, an open period during the day when students could engage in other activities. For the last three years, student Chase Windebank who recently graduated has been leading an informal religious gathering during Seminar time and attendance had increased to over 90 students. The school district has now cancelled the Seminar period entirely for the upcoming school year, essentially eliminating the issue of whether religious activities are permitted during that time.

Graduation Prayer in Public Schools

Here is a memorandum written by Mat Staver of Liberty Counsel.

Liberty Counsel is a public interest law firm that seeks to protect religious liberty and free speech. Notice it is not a "neutral" group, but rather, like the ACLU, a group that has a particular understanding of the First Amendment.

Per our discussion today: From Cato:

Public Schooling’s Pluralism Problem and the School Choice Solution

Don''t Forget State Constitutions

From How Appealing:

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

Spring 2015 Syllabus for Con Law II: Religion and the Constitution

Richard F. Duncan: Room 220 Law, email:richardfduncan@gmail.com, phone:472-6044

Office Hours: I don't maintain specific office hours; I have an open door policy and I will be in the office regularly and welcome your visits or appointments.

Class: This class meets from 3:15 until 4:45  on Thursdays and Fridays. Since the class meets for 90 minutes instead of 75 minutes, will meet 24 times rather than 28 times. Thus, we are required to cancel 4 classes during the semester.

Attendance Policy: Attendance is required.

Grading & Exam: Seventy-five percent (300 points) of your grade for this course will be based upon the final exam. Twenty-five percent (100 points) of your grade for the course will be based upon short reaction papers that you will write in response to Supreme Court oral arguments we listen to in class.

Casebook:  Varat, Amar & Cohen, Constitutional Law (14th Ed. Foundation Press 2013)

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

For Spring 2015, students should be prepared for 1 full assignment for each class. In other words, you should be prepared to discuss one complete assignments at all times. I may make a few minor adjustments to these assignments as the course progresses to include some links to recent First Amendment cases or issues.

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

LIST OF ASSIGNMENTS

I. Establishment Clause

1. Duncan article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available (free download) at SSRN;  Dreisbach article; Handout No. 1 (available in Handout racks by Jan. 12); Casebook p. 1615-1620

2. casebook p. 1621-1630;  Linder Introduction (Link); Engel v. Vitale (Link); Wallace v. Jaffree (Link); Lee v. Weisman (Link).

3. Casebook p. 1630-1634; Handout 2; Lynch v. Donnelly (Link); Allegheny County case (link); Casebook p.1634-1651; Summun case (link)

4. Legislative Prayers: Marsh v. Chambers (link); Town of Greece (link); Town of Greece oral argument (listen in class)

5. Handouts 3 and 4; Widmar v. Vincent (Link);Casebook p. 1651-1665

6. Casebook p. 1665-1688; Arizona tax credit case (Link)

7. Casebook p. 1689-1701; Rosenberger Oral Argument (listen in class)

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

II. Free Exercise Clause

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


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

3. Casebook p. 1709-1719; Handout 5; Handout 6 (Lukumi and Axson-Flynn)

4. Hosanna-Tabor decision (link); Locke v. Davey (Handout 7); Casebook p. 1722-1724; Cutter v. Wilkinson (link);

5. RFRA & Hobby Lobby: RFRA text (link); Hobby Lobby (Link)

6. RLUIPA:  Cutter v. Wilkinson (link); Holt v. Hobbs (link) (Sup Ct opinion)

7. Capstone problem (Free Exercise and Establishment Clauses): Colorado Christian University v. Weaver (link); my "clearest command" article (Link)

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

[ Reed v. Town of Gilbert oral argument]

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

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

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

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

5. Casebook p.1435-1442

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

7. Citizens United (link)