Trinity Lutheran

Remember Prof. McConnell's statement about religious liberty in the Welfare State: link

Final Exam

Here is what I have decided about the final exam:

Grading: Your grade for the course will be based 100% on your score on the Final Exam. The Final Exam will consist of one substantial essay question and two shorter essay questions.The Final will be a closed book exam. Most of the essay questions will be ones you have encountered during the semester, whether in the blog, the assigned readings, or our class discussion.

Text of First Amendment

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Masterpiece Cakeshop--Viewpoint or Content Mandate

In Masterpiece Cakeshop, was the mandated cake artistry content-neutral, content-based or viewpoint-based? Discuss

Public and Nonpublic Fora: Brief Introduction

 The Categories of Public and Nonpublic Fora

The Supreme Court has classified government property opened to private expression as creating one of three categories of fora: such government property will be classified as either a traditional public forum, a designated public forum, or a nonpublic forum. A traditional public forum is a place, such as a park or a public street, that has “immemorially been held in trust for the use of the public and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”  

A second category of forum is the designated or limited public forum. Such a public forum is created when Government purposefully opens its property for public expression by part or all of the public.

Finally, a nonpublic forum exists when Government opens its property for certain communicative purposes, but does not intend to create a designated public forum.

In the case of a limited public forum, government may not exclude “a speaker who falls within the class to which a designated public forum is made generally available,” nor “may it discriminate against speech on the basis of viewpoint.” 


In the case of a nonpublic forum, the government may restrict access “as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials oppose the speakers view.” 

Significantly, although the government may exclude speech from even a limited public forum on the basis of subject matter, viewpoint discrimination is prohibited in both public and nonpublic fora.

Notice in Rosenberger the Court referred to the SAF Funding Policy as "a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable." 

What is a metaphysical forum? How can a pool of money be a forum for speech? Does it turn on the purpose of the funding? Why did U VA create a pool of funds to pay the printing costs of newspapers and magazines published by student groups?

Rosenberger Oral Arg Link

Link

Town of Greece Oral Argument

My plan for Monday July 16 is to spend the first 15 minutes of class discussing Summum and Walker.

Then we will listen in class to the Town of Greece oral argument before SCOTUS.

 Here is the link to the oral argument in case: LINK

The blog posts on Chambers and Town of Greece give you a good idea of the doctrine of those cases.

Walker v. Tex. Div. Sons of Confederate Veterans (Link Case)

Texas allows nonprofit entities to sponsor specialty license plates. Apparently, the State has approved over 350 specialty plates designed by private organizations including ones bearing the names of fraternities and sororities, Universities, the Masons, the Knights of Columbus, and slogans such as “I’d Rather Be Golfing.” The private entities design the specialty plate, and pay rather large fees into the state treasury. As Justice Alito’s dissent puts it: “[T]he State of Texas has converted the remaining space on its specialty plates into little mobile bulletin boards on which motorists can display their own messages.” P. 7

When the Sons of Confederate Veterans proposed a specialty plate featuring a tiny Confederate battle flag, the state rejected the design because many members of the general public found the design offensive.

So is this a case of government speech like Summum or private speech rejected from a forum based upon its viewpoint?

Is this case more like the park in Summum or more like the Columbine wall from our hypothetical?

If you see a driver with a Texas license plate that says "I'd Rather be golfing" or "Join the Masons" do you view that message as that of the State of Texas, or of  the car owner who purchased a specialty license plate? If you see a Notre Dame Football specialty plate do you believe the State of Texas has a new official favorite football program? Or just that some Notre Dame fans, who happen to live and drive in Texas, are flying their colors via the specialty license plate message?

So, who got it right--Justice Breyer and the majority (government speech thus no free speech claim) or Justice Alito and the dissent (private speech rejected on the basis of its "offensive" viewpoint)? 

Masterpiece Cakeshop--Thoughts and Questions

Although the Court does not decide the Free Speech issue in this case, notice on page 2 it buries a bone in dictum:

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

This is a strong suggestion that custom made cake artistry is indeed artistic expression protected by the Free Speech Clause. Add in the strong compelled speech opinions by Thomas and Kennedy in NIFLA and you can predict how the next cake artist cakes will be decided under the "no compelled speech" doctrine.

Notice that the Court does hold that the Colorado Civil Rights Commission did violate Phillips' rights under the Free Exercise Clause of the First Amendment because the Commission violated the "obligation of religious neutrality." p. 2-3

How did the Commission violate its obligation of neutrality under the Free Exercise Clause?

Let's look at p. 13-17

1. Bigoted anti-religious statements. [See 2 Tim: 3:12  ("Indeed, all who desire to live a godly life in Christ Jesus will be persecuted.")]

2. Differential treatment of Phillips and other bakers who refused to bake cakes with religious messages they found offensive. p. 14-15

The Commission exempted bakers who were offended by anti-gay religious messages on cakes, but did not exempt bakers like Phillips who were offended by cakes celebrating SSM.

Here is a key quotation from p. 16:

A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.

Again, although this comes in to explain why the Commission violated Phillips' rights under the Free Exercise Clause, the same reasoning applies to the Free Speech Clause and the Commission's viewpoint-based order compelling Phillips to create wedding cakes celebrating SSM.

Do you see this last point?

So, although the opinion is narrow in the sense that it focused on the particular facts of Phillips' case, much of the reasoning applies in other cases involving wedding vendors who object to taking part in SSM.

Masterpiece Cakeshop: Cake Artistry--Food or Expression?

One of the amicus briefs opposing Jack Phillips in this case, one written by First Amendment scholars I admire, candidly admits that the government may not compel persons who create speech or artistic expression,

such as painters, photographers, videographers, graphic designers, printers and singers, “to record, celebrate. or promote events they disapprove of, including same-sex weddings.”

But somehow this brief concludes that free speech protection does not extend to bakers such as Jack Phillips. Cake is food--not speech--they argue.

Surely, a pizzeria can’t claim its pizzas or breadsticks involve first amendment expression.

A McDonald’s cheeseburger is just a cheeseburger—it may not even be that.

A business that rents chairs and tables and tablecloths is not an expressive business.

So much depends on the facts.

In the oral arguments in this case, Solicitor General Francisco, argued that Jack Phillip’s custom cakes “are essentially synonymous with a traditional sculpture except for the medium used” (cake dough rather than clay or marble).

Phillips also paints using cake as his canvas.

The Solicitor General suggested that a workable test with respect to a service that is part art and part utilitarian is to ask whether it is predominantly art or predominantly utilitarian.”

So, suppose a same-sex couple asked Jack Phillips to do two things:

1. sell them some croissants to feed guests at the pre-reception lunch; and

2. to create a custom-made wedding cake to serve as the centerpiece of the iconic cake cutting ceremony celebrating their wedding and marriage.

Under the predominantly speech vs. utilitarian test, how would these two cases come out?