Hill v. Colorado: Content-neutral or Viewpoint-based?

Suppose in 1950 Alabama passed a law creating an 8-foot floating buffer zone restricting oral protests, education or counseling within 100 feet of any segregated restaurant or commercial establishment?

Or in 1970, after complaints about anti-war protests directed at Dow Chemical for supplying napalm to the US military, Congress passes a law prohibiting "picketed focused at the place of business of any business engaged in supplying chemicals to the United States Armed Forces?"

Is this law, which restricts speech on public sidewalks and streets, constitutional? Is it content-neutral? Is it viewpoint-based?

Would it forbid someone from approaching a person on the sidewalk in front of a diner and saying: "I am here to praise Alabama's mandatory segregation laws"? Does it matter that the restriction singles out certain places--segregated restaurants and commercial establishments--for the speech restriction?

What about a law that restricted speech on the sidewalk "within 100 feet of any business that is the subject of a labor dispute"?

Or a law creating a bubble zone within 100 feet of "any business engaged in the sale or manufacture of military weapons and national defense materials"?

Free Exercise: Prof. Linder's Questions

Let's talk about some of the questions posed by Prof. Linder:

"4. After Smith, it would be possible for a state to prosecute a priest or minister who offers communion wine for distributing alcohol to a minor. Is such a prosecution likely to occur? Why not? Does this suggest that the real losers in Smith are religions that have relatively few adherents, and especially those that are unpopular?

5. What in the Constitution supports applying a different and more deferential standard when it is a military regulation, rather than a civilian regulation, that is alleged to impinge upon constitutional liberties (as the Court suggested in Goldman)? Would it be better to apply the same standard, recognizing (of course) that national security is an interest of the highest order?

6. Lukumi Babalu Aye holds that government may not target a religious practice for prosecution. Suppose a state where concerned about a religious sect that practiced the handling of poisonous snakes in its worship services. How might the state draft a law that would avoid the constitutional problems that Hialeah encountered with its law attempting to deal with animal sacrifice?

7. What do you think about the argument of Justice Stevens in the Boerne case: that to grant the Catholic Church an exemption from zoning laws that would not be given to a non-religious institution violates the Establishment Clause? How would you resolve the tension between the Free Exercise Clause and Establishment Clause?

11. Could you suggest a way in which Hialeah could redraft its ordinances to effectively prohibit animal sacrifice without violating the Free Exercise Clause or criminalizing widely accepted forms of animal killing? "

Substantial Burden

Let's look at some of the cases we have encountered with a view to deciding whether the government has imposed a "substantial burden" on the free exercise of religion:

--Yoder: The law makes it a crime for Amish parents to home school their children in Amish vocational skills? Yes!

--Sherbert: The law denies unemployment benefits to a worker whose faith requires her to turn down employment that requires working on the Sabbath? Yes!

--Hypo: A person seeks to require City government to remove a "Gay Pride" display from a public park because it offends his religious sensibilities about sexual morality? No! Having to avert his eye or walk a few steps out of his way to avoid the religiously-offensive display does not impose a substantial burden on his religious liberty.

--Lyng: Government's use of National Forest will seriously interfere with a portion of the land considered sacred by three American Indian tribes? No! Why not? "The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens?" (p.2) Hmmm. Suppose a devout Catholic Pl argues that government hospitals should not be used for abortions because abortion violates the Pl's religious beliefs? Same case?

--What about a law that requires all businesses to close on Sundays. Pl, a person whose religion requires him to close on Saturday, sues under the Free Exercise Clause claiming that the Sunday Closing Law imposes a substantial burden on his free exercise of religion because it means that he must close his store on both weekend days. Do you agree? See Braunfeld v. Brown, 366 U.S. 599 (1961).

Locke & Cutter & "play in the joints"

Consider this observation of Prof. Rick Garnett:

For starters, Cutter highlights the flip-side of the “play in the joints” argument on which the Court had relied in last year’s marquee religion-clause case, Locke v. Davey. In that case, the Court ruled (incorrectly, in my judgment) that the State of Washington’s decision to deny scholarship benefits to an otherwise eligible college student, merely because the student elected to major in theology, did not violate the Free Exercise Clause. The majority in that (non-unanimous) case recognized that the Establishment Clause would permit Washington to provide the scholarship, but insisted that the Constitution did not require equal treatment in this situation. There is, the Court stated, some “play in the joints” between what the Establishment Clause permits and what the Free Exercise Clause requires. In Cutter, the justices acknowledged that this argument cuts both ways: There is also “play in the joints” between what the Free Exercise Clause requires and what the Establishment Clause forbids.

What are your thoughts? Do you understand how the concept of "play in the joints" works? How it allows for legislation neither required by the Free Exercise Clause nor forbidden by the EC?

Justice Thomas and "Partial Incorporation" of the EC

Supreme Court's Doctrine of Incorporation


By early in the twentieth century the Supreme Court found a way to “incorporate” certain provisions of the Bill of Rights against the states as “part of the liberty protected from state interference by the due process clause of the Fourteenth Amendment.” Under this concept of “selective incorporation,” a particular provision of the Bill of Rights “is made applicable to the states if the Justices are of the opinion that it was meant to protect a ‘fundamental’ aspect of liberty.” In other words, only individual liberties that are deemed to be “implicit in the concept of ordered liberty” or “fundamental to the American scheme of Justice” are incorporated against the states by the liberty clause of the Fourteenth Amendment. As Justice John Paul Stevens has put it so eloquently, “the idea of liberty” is the source of the incorporation doctrine.

Moreover, under the doctrine of incorporation these fundamental individual liberties are protected only against “deprivations” by the states. Individuals do not have a right to strike down laws that merely offend their sensibilities, because only laws that deprive them of protected liberty – i.e., laws which impose substantial burdens, undue burdens, or extreme restrictions on their individual liberty– constitute unconstitutional deprivations of liberty under the Fourteenth Amendment. Thus, the incorporated liberty of free exercise of religion is protected (if at all) only against laws that impose “substantial burdens” on an individual’s religious exercise; freedom of speech protects an individual’s right to say what he wishes to say and to refrain from being compelled to speak, not the right to censor the state’s message or to silence willing messengers of the government’s speech; the right to just compensation for regulatory takings is protected only against “extreme” regulations that deprive an owner of “economically viable use” of her property; and even a woman’s “fundamental liberty” to choose to terminate an unwanted pregnancy is protected only against laws that unduly burden her liberty to choose, not against laws that reasonably regulate her access to abortion or which merely seek to persuade her to give life to the child she is carrying.

Justice Thomas on Incorporation

A. Justice Thomas in Newdow (the Pledge case):

Justice Thomas observed that the best scholarship on the original understanding of the Establishment Clause supports the conclusion that it is “best understood as a federalism provision... [which] protects state establishments from federal interference but does not protect any individual right.” Thus, incorporation of the Establishment Clause against the states is incoherent, because it “prohibit[s] precisely what [it] was intended to protect – state establishments of religion.”

B. Justice Thomas in Zelman (the case upholding school choice):

It is unlikely that Justice Thomas will ever convince a Supreme Court majority to reject more than sixty years of precedent by deciding to “unincorporate” the Establishment Clause. However, his second position on incorporation – what I call “partial incorporation” – merely asks the Court to take its own theory of incorporation seriously by recognizing that “[w]hen rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty.” In other words, the Establishment Clause may mean one thing when applied as a structural limitation on the power of the federal government, and something else when applied only to protect individual liberty against state action.

For example, in Zelman a neutral voucher program that provided tuition aid to economically disadvantaged Cleveland schoolchildren to attend a private religious or nonreligious school chosen by their parents was attacked as a law that unconstitutionally advanced religion under the Establishment Clause. Although the Court upheld the law because it viewed the voucher scheme as consistent with its Establishment Clause test, Justice Thomas concurred and reasoned that the Fourteenth Amendment could not be employed to invalidate a neutral school choice program by incorporating a structural component of the Establishment Clause. As he put it so well: “There would be a tragic irony in converting the Fourteenth Amendment’s guarantee of individual liberty into a prohibition on the exercise of educational choice.” The incorporated Establishment Clause does not give A a constitutional right to restrict the liberty of B, nor does it forbid the states from giving parents a greater choice “as to where and in what manner to educate their children.”

C. Justice Thomas in Van Orden (the Texas Ten Commandmets Case):

"There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause."

This post is based upon my Regent Law Review article on "Justice Thomas and Partial Incorporation of the Establishment Clause." I have omitted footnotes and citations for purposes of brevity.

Newdow's Standing Plus Some Comments

As the Court pointed out, Mr. Newdow based his standing not as the legal representative of his daughter, but as "a noncustodial parent" who believed that daily recitation of the Pledge in his daughter's school imposed a concrete injury-in-fact on Mr. Newdow as a parent. In oral argument, here is how Mr. Newdow, who represented himself, explained his personal injury:

I am an atheist. I don't believe in God. And every school morning my child is asked to stand up, face that flag, put her hand over her heart, and say that her father is wrong.

What do you think? Is this a concrete injury for purposes of Art. III standing?

Suppose the Pledge said "one Nation, which does not recognize the existence of God or any other myth"--would a noncustodial parent who is a devout Christian or Jew have standing to challenge daily recitation of this atheistic pledge?

Why do you think the liberals on the Court, who usually have a liberal view of standing, took such a narrow view in this case?

Justice Scalia had recused himself from this case. What would have been the effect of a 4-4 vote on the merits? When was this case decided?

Now some questions and comments:

1. Notice that Justice O'Connor recognizes some kind of "ceremonial deism" that somehow passes muster under the endorsement test. Do you agree? What might an atheist like Mr. Newdow argue in reply?

2. Notice also Justice Thomas' discussion of two different types of coercion under the "coercion test": (1) real or actual coercion--coercion "accomplished by force of law and threat of penalty;" and (2) soft or constructive coercion, as in Lee v. Weisman, amounting to peer pressure or psychological pressure to conform ("Roberta Flack killing me softly" non-coercive coercion). If the former is the real coercion test, is the latter nothing more than the endorsement test adorned with a fig leaf?

3. Again, notice Justice Thomas discussion of incorporation and his call to "consider more fully the difficult questions whether and how the Establishment Clause applies against the States."

What is Viewpoint Discrimination?

How is viewpoint discrimination different from content discrimination?

Is the subject or topic the speaker wishes to address permitted? If so, is the speaker being excluded from the forum only because of the viewpoint or ideological perspective from which he or she wishes to address the subject?

Here is a great quote from Prof. Michael McConnell on viewpoint discrimination:

"In my opinion, whether a restriction is viewpoint discriminatory [depends upon the answer to the following] realistic question: Are there any identifiable ideological groups of thought that are put at a disadvantage relative to their competitors? When religious speakers are excluded (even if 'religious' includes atheists), their perspective is put at a disadvantage vis-a-vis dozens of other competing worldviews. Thus, a person who thinks the welfare reform bill is bad because it is contrary to Marxist theory can get government money and proclaim his views, but the person who thinks it is bad because it is contrary to Christ's admonition to feed the poor cannot."

Are Reasonable Observers Unreasonably Reasonable

I like to refer to the "Reasonable Person" in tort law as the "Unreasonably Reasonable Reasonable Person," because no one I have ever met is as careful and prudent and reasonable as the Reasonable Person (thus, he/she is "unreasonably reasonable" the kind of person who sets the alarm for 3 am to get up and shovel the snow off the sidewalk to protect pedestrians against foreseeable risk of harm).

Is Justice O'Connor's reasonable observer "reasonable" or "unreasonably reasonable." Is it reasonable to perceive a Nativity display in a public park during the Christmas season as an attack on non-Christians? Does anyone really think that the city government is saying "non-Christians are second class citizens" when it puts up a Nativity display or a Ten Commandments display in the public square? Why not view the Court's cleansing of religion from the public square (a public square that includes all sorts of secular holiday displays) as an endorsement by the Court of the message of hostility that religious subgroups are not full members of the political community?

Does the endorsement test as applied by the Court violate itself?