Practice Exam Discussion Session--Thursday September 6 an 12:10 PM

We will meet in Room 113 at 12:10 PM on Thursday September 6 to discuss the practice exam problem.This session (and your work on the practice exam problem) will constitute a make-up for the class in November I will need to cancel.

Link

Standing In Newdow

In the recent Pledge of Allegiance case, Michael A. Newdow, "an atheist whose daughter" attends a school in which the Pledge is recited each day, filed a lawsuit in federal court arguing that "under God" in the Pledge made the daily exercise a religious endorsement in violation of the Establishment Clause of the First Amendment.

Although Newdow shared physical custody of his daughter with the child's mother, the mother, who does not object to the Pledge, was granted (by the family court order concerning custody matters) the right to "exercise legal control" over important decisions concerning the upbringing of the child.

Nevertheless, Mr. Newdow claimed that he was harmed by the Pledge in his own right. Here is how he described his injury in his oral argument in the case (he is a lawyer who represented himself):

"I am an atheist. I don't believe in God. And every 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? Has Mr. Newdow shown a sufficient concrete injury-in-fact to justify his standing to litigate this Establishment Clause case in federal court?

In Newdow, the Supreme Court distinguished between "Article III standing, which enforces the Constitution's case-or-controversy requirement...and prudential standing, which embodies 'judicially self-imposed limits on the exercise of federal jurisdiction.'" 542 U.S. at 11.

The Court seemed to accept that Mr. Newdow had alleged an actual, concret injury-in-fact, but nevertheless held that he lacked "prudential standing" because of the Court's reluctance "to intervene...[in] the realm of domestic relations."

Of course, the cases are legion in which the Supreme Court has chosen to intervene in the realm of domestic relations. Indeed, we will read many of these "domestic relations" cases later in the semester.

By the way, exactly what is "prudential standing?"

Power: Who Decides, Who Rules?

I know some of you are struggling with these early cases in Con Law.

They appear to be about nothing--Marbury's dinky little appointment, an academic debate about originalism vs. the living constitution, the exceptions clause to the Supreme Court's appellate jurisdiction (yawn), who owns Blackacre (Martin v. Hunter's Lessee).

These early materials are all about power--who decides what our laws and fundamental rights should be: the federal courts, Congress, state legislatures and state courts,the People? Where does power lie and how is it checked lest it become absolute?

I really like a hockey metaphor when thinking about checks and balances.

Congress has the puck and is checked by the Court, the Court has the puck and is checked by Congress, the Feds have the puck and are checked by the states, the powers that be make a mess of things and the People call a Constitutional Convention to press the restart button on some issues and try things a different way.

These cases are hard to read and the facts of the cases are difficult to get excited about, but the issues are huge. Are we serfs? Or free men and women? Do we govern ourselves through the democratic process? Or are we governed by an unelected tribunal? Or maybe a little of each?

Who sez? Who decides?

Great stuff once you get into the battle!

Prof. Randy Barnett on Originalism

I am assigning this talk on originalism by Randy Barnett, one of the leading originalists scholars. This is a talk I thought about listening to together in class, but it is a wonderful way to keep the learning going on line. Here is the link (and please try to write at least 1 comment after you view it):

 Prof. Randy Barnett on Originalism

Symbolic Conduct: The O'Brien Test

Be sure to distinguish between symbolic speech (a black armband, a pride flag t-shirt), and symbolic conduct (burning a flag or a draft card). The former is pure speech; the latter is the subject of the watered down, O'Brien Test.

Once we are dealing with symbolic acts, O’Brien gives us a four-part test for determining when a government interest in regulating the nonspeech element sufficiently justifies the regulation of expressive conduct:

The government regulation of expressive conduct is valid if:

1) it is within the Constitutional power of government [raising an army]

2) furthers an important or substantial interest [preventing harm to the smooth and efficient functioning of the Selective Service System]

3) if the governmental interest is unrelated to the suppression of free expression; and

4) if the incidental restriction on free expression is no greater than is essential to the furtherance of that interest.

By the way, notice how the Court totally rejects a "purpose" test under the Free Speech Clause. The Court's objections here (p.1586) are basically the same as Justice Scalia's objections to a "purpose" test under the Establishment Clause. Notice that, somehow, the EC seems to be an exception to every normal rule the Court applies to every other constitutional claim--standing, incorporation, purpose, government speech, etc. Where in the text of the Constitution is this special status for the EC?

Sherbert as an Individualized Exemptions Decision

Here is how an AmJur annotation explains this rule:

The second exception is the "individualized exemption" exception: where a state's facially neutral rule contains a system of individualized exemptions, a state may not refuse to extend that system to cases of religious hardship without a compelling reason. The Free Exercise Clause's mandate of neutrality toward religion prohibits the government from deciding that secular motivations are more important than religious motivations. Accordingly, in situations where government officials exercise discretion in applying a facially neutral law so that whether they enforce the law depends on their evaluation of the reasons underlying a violator's conduct, they contravene the neutrality requirement if they exempt some secularly motivated conduct but not comparable religiously motivated conduct.

And here are some excerpts from my article on this issue:

1. "As I read Smith and Lukumi, the individualized-assessment rule is best understood as a subset of the rule that applies rigorous strict scrutiny to nonneutral or nongenerally applicable laws. I believe that it is a categorical rule that classifies individualized exemption processes marked by discretionary decisionmaking as per se not neutral and not of general application."

2. "[W]hen the transfigured Sherbert applies, there is no need to establish that the law is underinclusive to a substantial degree. Instead, strict scrutiny will apply if the religious-liberty claimant establishes two things: (1) that the State has in place an individualized and discretionary process for allocating governmental benefits or burdens and (2) that his or her religious-liberty claim has been rejected under the ad hoc assessment system. In other words, Sherbert imposes a categorical rule that treats the individualized procedure as per se not neutral and not generally applicable. When this occurs, the case is taken out of Smith, and the governmental decision to reject the religious-liberty claim is reviewed under strict scrutiny and the compelling interest test."

3. "A system of individualized application of governmental benefits or burdens may arise in many situations. In general, such a system exists whenever there is a process of standardless or discretionary review. This process may be created by a legislature when it enacts a restriction and then explicitly creates an individualized and discretionary exemption process. Thus, in Sherbert v. Verner, the legislature denied unemployment benefits to otherwise eligible claimants who were found to have failed without “good cause” to accept “suitable work.” Similarly, a governmental institution, such as a public school, a state university, or a regulatory agency, may adopt policies that expressly create an ad hoc process for “hardship” or “good cause” exemptions.

Moreover, even if a rule or policy does not expressly create a process for individualized exemptions, institutional rules may be (and often are) waived by the government officials who made the rule. School rules may be waived by the principal, or the faculty, or the administrator into whose bailiwick the rule falls. In government employment, workplace rules may be waived by supervisors, department heads, or other senior officials. Zoning laws, landmarking laws, and similar land use regulations are almost always subject to individualized procedures, such as special use permits and variances, for determining which parcels of land are restricted and which are unrestricted.

The categorical rule should trigger strict scrutiny under the transfigured Sherbert whenever the government has in place a system of individualized assessments to allocate some benefit or burden and then rejects a claim for religious accommodation under that system. Lawyers representing religious-liberty claimants need to be aware that the existence of such an ad hoc system may not be obvious upon initial assessment of a case. It may well appear at first glance that the policy restricting the client is a neutral and generally applicable one that applies across the board to all similarly situated persons.

For example, a state university academic policy on its face may purport to require all students to enroll as “full-time” students, or a public school may require all students to attend a “mandatory assembly” on safe-sex education. But on closer inspection in the course of discovery and investigation, the attorney may learn that the defendant has implemented either a formal or an informal procedure for granting individualized exemptions from the otherwise generally applicable policy. For example, the attorney may learn that students who wish to attend college on a part-time basis may petition a university official such as a dean or department chair for an ad hoc waiver of a “full-time” enrollment rule. Or she may learn that students are routinely excused by school authorities from mandatory assemblies for various reasons including illness, personal conflicts, or family priorities such as weddings or funerals. The importance of ferreting out individualized exemptions and waivers cannot be overemphasized, because such evidence should take the case out of Smith and place it squarely under Sherbert and the compelling interest test.

At least in theory, the mere existence of an ad hoc “system” or process for evaluating exemption and waiver claims--either by written policy or by the actual practice of the defendant--should be sufficient to trigger strict scrutiny when a religious claimant's petition for accommodation is denied. However, in practice there will usually be evidence of at least a few, and often many, persons who have been granted discretionary exemptions under the ad hoc system. For example, if the attorney checks school attendance records going back a few years for occasions when “mandatory assemblies” were scheduled, she will likely find that a number of students were absent on those days due to illness, weddings, funerals or other family or personal commitments, and for a variety of other perfectly appropriate reasons. The existence of these excused absences from the relevant school days (and thus from the “mandatory” assemblies conducted on those days) is strong (perhaps conclusive) evidence that the “mandatory assembly” policy is subject to an individualized exemption system. Therefore, when the school rejects a request by, say, a Catholic student to be excused for religious reasons from the mandatory safe-sex assembly, strict scrutiny applies and the student's free exercise claim should prevail under Sherbert and the categorical rule."

Great Political Comic on "Hate Speech"

Link

Third Grade Speech Case

From the Religion Clause blog:

3rd Circuit Says School Can Bar Bible Reading At Kindergarten "Show and Tell"

In Busch v. Marple Newton School District, (3d Cir., June 1, 2009), the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, upheld a Pennsylvania elementary school's restriction that barred a kindergartner's mother from reading aloud from the Bible as part of a "show and tell" activity in her son's classroom. The teacher assigned each student an "All About Me" week, part of which involved a parent visiting the class and leading students in an activity or story. Donna Busch wanted to read from the Bible because it was her son Wesley's favorite book. Donna claimed that the school's refusal violated her free speech and equal protection rights, as well as the establishment clauses, under both the U.S. and state constitutions. The majority said in part:

Restrictions on speech during a school's organized, curricular activities are within the school's legitimate area of control because they help create the structured environment in which the school imparts basic social, behavioral, and academic lessons.... Principal Cook disallowed a reading from holy scripture because he believed it proselytized a specific religious point of view.

Judge Barry wrote a concurrence, saying:

children of kindergarten age are simply too young and the responsibilities of their teachers too special to elevate to a constitutional dispute cognizable in federal court any disagreement over what a child can and cannot say and can and cannot do and what a classmate can and cannot be subjected to by that child or his or her champion.

Judge Hardiman dissented as to plaintiff's free speech claim, arguing that the school had engaged in unconstitutional viewpoint discrimination:

Clearly, "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings."... It does not follow, however, that the state may regulate one's viewpoint merely because speech occurs in a schoolhouse — especially when the facts of the case demonstrate that the speech is
personal to the student and/or his parent rather than the school's speech. The majority’s desire to protect young children from potentially influential speech in the classroom is understandable. But that goal, however admirable, does not allow the
government to offer a student and his parents the opportunity to express something about themselves, except what is most important to them.

Yesterday's San Jose (CA) Mercury News reported on the decision. (See prior related posting.)

Hypo

Okay, now change the facts and ask yourself whether this changes your mind about the proper outcome of the Free Speech issue in the case above.

Now the student is Mary and she is the child of a same-sex couple, Alice and Sally. On "all about me" day Mary's mom, Alice, wishes to read from Mary's favorite children's book, Heather Has Two Mommies, a book about a same-sex family. The teacher forbids Alice to read from this book, because some parents don't want their young children exposed to issues about sexual orientation and same-sex relationships.

How would you rule on Mary and Alice's free speech claim?


I think the dissent got it right in the Busch case, but this is, after all, a curriculum speech case (i.e. Hazelwood not Tinker). The irony is that this was an "all about me" day, designed to promote self-esteem for each child. As it turns out, it is--for religious children--an "all about me except the most important thing about me" day, a program that a reasonable observer might well perceive as endorsing a message of disapproval concerning the religious "me" of children of faith.

If neutrality is the goal of the First Amendment, it would be better not to have this kind of "all about me" day at all, rather than to have it and then force religious children to create a false "me" because their authentic "me" is religious and thus unacceptable.

And again, this is why I believe we need school choice for all families with children. Not everyone's favorite book is a secular one.

I hope this case reaches the Supreme Court.

Tinker: Some Questions

Prof. Linder poses several good questions(link) for you to ponder:

1. Do the speech rights of students increase as they get older? Do high school students have the right to speak in ways that elementary school students do not? To university and graduate school students have the right to speak in ways that might be punished if they were students in a high school?
2. Would Mary Beth Tinker have a First Amendment right to wear a bright pink armband, just because she thought it was fashionable--or could school administrators in that case enforce a "no armbands" policy? What does a bright pink armband say?
3. Would Tinker have a right to wear a black armband in protest of the Viet Nam War even if no one understood the message she was attempting to communicate?
4. Would Tinker have come out differently if school administrators could have demonstrated that the armband caused loud debates to break out in class? Fights to break out in the hall?
5. In Tinker, the Court noted that the school banned armbands, but allowed other sorts of expression such as "Vote for Nixon" or "Vote for Humphrey" buttons. Would the school have had a stronger argument if it banned ALL forms of symbolic expression, campaign buttons, and clothing with messages? Would the school have prevailed in that case?
6. Does a student in a predominately Jewish school have the right to wear a swastika to class to demonstrate his support for Nazi ideology? Does the First Amendment protect symbolic student speech only so long as it is not TOO controversial?

Town of Gilbert--Content-based Restrictions and Strict Scrutiny

The Town of Gilbert has three categories of “outdoor signs” that are allowed to be displayed without a permit. See p. 2.

Ideological signs (“Abortion is a Woman’s Right” or “Abortion Takes an Innocent Life”) are most favorably treated.

Political Signs (“Vote for Grutz”) are treated somewhat less favorably.

“Temporary Directional Signs Relating to a Qualifying Event” (“Good News Church Services 10 PM Sunday June 4 at Lincoln Southwest High School”) are treated much less favorably than the other two categories.

Issue: Is this regulation of speech content-based or content-neutral?

Notice also a nice discussion of strict scrutiny on p. 14-15.

Graduation Ceremonies

The First Amendment Center has a very good summary of the EC and Free Speech issues concerning prayer at public school graduation ceremonies. It is worth a look.

With respect to valedictorian speeches, much depends upon how much control the school maintains over the content of the speech. The more control the school maintains over the content of the "student speech" (such as a requirement that the student submit a draft of the speech to school authorities for approval), the more likely it is that the EC will prevail over the student's free speech rights. However, if the school policy makes clear that the valedictorian's remarks are his or hers alone (remember the value of a disclaimer on this point), the more likely it is that the EC will not interfere with the free speech rights of the student speaker.

School Dress Codes and First Amendment

From the Religion Clause blog:

In Jacobs v. Clark County School District, (9th Cir., May 12, 2008), the U.S. 9the Circuit Court of Appeals, in a 2-1 decision, rejected a challenge to a Nevada school district's school uniform policy that precluded plaintiffs from wearing T-shirts with printed messages on them. At least one time this involved sanctions for wearing a T-shirt displaying a religious message. The majority found that the uniform policy was both viewpoint- and content-neutral, and need satisfy only an intermediate scrutiny standard. Here the policy furthered important governmental interests unrelated to the suppression of speech, and leaves open alternative channels of communication. The opinion also rejected the argument that the dress code compelled students to express a view in favor of uniformity. The majority additionally rejected plaintiff's free exercise of religion claim, finding that the uniform code was a neutral rule of general applicability.

Judge Thomas dissented arguing that the regulation was not viewpoint neutral since it permitted T-shirts with slogans supporting the school. He also argued that the government's purpose in imposing the uniform rule was not substantial enough to outweigh students' speech rights. Today's Las Vegas Review Journal reports on the decision.

From Religion Clause Blog

High Schooler Sues To Challenge Art Project Limits

As we study free speech of religious students in public schools, real life imitates the classroom. Here is an excerpt:

"In Madison, Wisconsin, a Tomah High School senior (identified as A.P.) last Friday filed a federal lawsuit challenging a school policy that prohibits art class projects from depicting "violence, blood, sexual connotations, [or] religious beliefs." In an art class assignment involving drawing of a landscape, A.P. included a cross and the words "John 3:16 A sign of peace." Teacher Julie Millin, asked him to remove the Bible reference because other students were making remarks about it. When A.P. refused, she gave him a zero on the project, showing him the class policy. A.P. responded by tearing up the policy statement in front of the teacher. She ejected him from class and he later received two detentions for tearing up the policy. In a later incident, A.P.'s metals arts teacher rejected his idea to build a chain-mail cross because it was religious.

The complaint in A.P. v. Tomah Area School District, (WD WI, filed 3/28/2008), alleges that the school policy and its enforcement against A.P. violates A.P.'s First and 14th Amendment rights. It says that other artwork with religious themes are displayed throughout the school and argues that "per se censorship of religious speech in assignments does not represent a legitimate pedagogical interest." A release yesterday by the Alliance Defense Fund contains links to copies of A.P.' drawing and to drawings of demonic images created by other students in the class. Yesterday's Racine (WI) Journal Times reports on the case."


The complaint filed in the U.S. District Court for the Western District of Wisconsin in A.P. v. Tomah Area School District is available at www.telladf.org/UserDocs/APComplaint.pdf.
A copy of the drawing created by the student is available at www.telladf.org/UserDocs/APDrawing.pdf. Copies of artwork depicting demonic images created by other students in the class are available at www.telladf.org/UserDocs/DemonicDrawing1.pdf and www.telladf.org/UserDocs/DemonicDrawing2.pdf.

Here is the ADF Press Release announcing a favorable settlement in the case"

Wisconsin student wins settlement in “JOHN 3:16” drawing case

Freedom of religious expression no longer banned under school grading policy
Tuesday, May 20, 2008

MADISON, Wis. — A settlement reached between Alliance Defense Fund attorneys and the Tomah Area School District means the district will respect students’ constitutional right to religious expression in their artwork.

“Christian students shouldn’t be penalized for expressing their beliefs, so we’re pleased that this settlement will make sure that no longer happens,” said ADF Senior Legal Counsel David Cortman.  “It was clearly unconstitutional for the school to enforce a policy in such a way as to bar religious expression by a Christian student while allowing other types of religious expression by other students.  No school policy can require a student to surrender his First Amendment rights.”

On March 28, ADF attorneys filed a federal lawsuit after a teacher told a student at Tomah High School to either remove or cover up a Scripture reference depicted in a piece of artwork, citing a grading policy that banned depictions of “blood, violence, sexual connotations, [or] religious beliefs.”  Students who portrayed demon-like creatures in their art, however, were not censored.

On April 15, ADF attorneys filed a motion for preliminary injunction against the district.  The school district then decided to pursue settlement of the case.

Under the terms of the settlement, Tomah Area School District officials have removed the ban on religious expression in class assignments.  The student’s artwork, which initially received a “zero,” has now been graded.  Additionally, Tomah High School has removed from school records any and all references to the disciplinary actions taken against the student.

A copy of the stipulated dismissal filed in the U.S. District Court for the Western District of Wisconsin in A.P. v. Tomah Area School District is available here.

Catholic Hospitals and Abortion; Adoption Agencies and SSM

David French, Why Christians Can’t Compromise on Conscience

 

Link 

 

Money quote:

It goes something like this: Dear Christians, thank you for feeding, housing, and caring for the poor, but unless you do it in the manner we prefer, advancing the worldview we prefer — even to the point of adopting the personnel policies we demand — we will use all the power of law and public shame to bring you into compliance. We’ll pass laws that violate your conscience. We’ll call you bigots or misogynists when you resist. And all the while, the fact that you actually do serve and sustain (physically and spiritually) millions of Americans will be lost and ignored.
This is how activists justify tossing from campus Christian groups that do an immense of amount of good works simply because they don’t consent to being led by a lesbian who doesn’t believe in their statement of faith. This is how legislators pass laws that will reduce the number of adoption agencies rather than allow Catholic or other Christian agencies to follow their most basic principles when placing children in loving homes. This is how organizations such as the ACLU launch litigation campaigns that could cause hospitals to close, narrowing the health-care options for poor and marginalized Americans.
And in response to each event, as Christians leave campus or adoption agencies close their doors, many of these same progressives will be puzzled. Why close? Why leave? Just change your policies. Can’t you provide Catholic care and contraception — and blame the state for making you do it?
But this fundamentally misunderstands the nature of serious faith.

Bob Jones case: A Roadmap for Religious Persecution

Race is special under the US Constitution, so on its facts Bob Jones is understandable. But consider how tax status can be used to persecute religious institutions in the world we live in today.

Bob Jones University is a Christian college that had a policy forbidding students to engage in interracial.marriage & dating.

The IRS decided to deny the school's tax-exempt status as an educational institution as a result of this policy.

How much of a burden is this on a non-profit educational institution?

Issue: Does this decision violate the Free Exercise Clause?

This is a pre-Smith case, so Bob Jones clearly had a free exercise claim, but the Court held that the government's compelling interest in eradicating racial discrimination in education justified the IRS's decision to deny tax-exempt status?

What happens now if the IRS decides to deny tax-exempt status to churches and private schools that have policies based-upon the Biblical view of marriage and sexuality?

Notice RFRA would apply to a federal policy burdening religious exercise.

Religious Liberty vs. The Sexual Revolution

Prof. Doug Laycock, who supports both same-sex marriage and religious liberty, makes a very thoughtful point:

One of the ironies of the culture wars is that religious minorities and
gays and lesbians make essentially parallel demands on the larger society.
I cannot fundamentally change who I am, they each say. You cannot
interfere with those things constitutive of my identity; on the most
fundamental things, you must let me live my life according to my own
values. We can honor both sides' version of that claim if we will try.

And in all but a tiny fraction of these cases, the issue is not whether
any other individual can obtain contraception, or whether a same-sex
couple can have a wedding with the full panoply of catering, clothes, photographs,
flowers, and all the rest. All those things are readily available
in the market place in most of the country. The issue is whether the religious
conscientious objector must be the one who provides these things.

What are your thoughts?