Discussion on Covid Mandates

 The Covid mandates are a major issue for our study of Free Exercise. I enjoyed our brief class discussion of the mandates and religious liberty yesterday. Here is something I shared with my 1L Property class:

Whatever your views about the mandates, I hope that you will not become too used to having your life so heavily regulated by government for such a long period of time. It is like boiling a frog slowly; you get used to the warm water as the heat slowly increases and the next thing you know you are boiled alive. Here is something Jefferson wrote to Abigail Adams in 1787:

"The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the Atmosphere."

 And here is something Reagan said along the same lines:

“Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men [and women] were free.”

Endorsement vs. Disapproval

Excerpt from my article:

 

But when evaluating a public culture such as ours, in which government endorses many things and celebrates many causes,[1] how are we to determine whether a Christmas nativity display in a local park or public school endorses religion, or whether the removal of such a display by a federal court injunction endorses a message of disapproval of religion? Why are citizens who celebrate Christmas marked as favored insiders when the Christmas display is only one of hundreds appearing in the public square in the course of any given year? Indeed, when a religious display is singled out and cleansed from a public square open to all sorts of secular displays by a federal court applying the endorsement test, doesn’t this judicial decree tell the religious display’s willing audience that they are outsiders and less than full members of the political community?

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[1] See Kevin Seamus Hasson, The Right to Be Wrong: Ending the Culture War Over Religion in America 128 (2005) (observing that government “celebrates everything from National Catfish Day to National Jukebox Week.”) I would add that government also celebrates many ethnic and cultural causes such as Cinco de Mayo, Gay Pride Month, Black History Month, Earth Day and Kwanza. A truly “neutral” public culture in a pluralistic society should recognize and celebrate the full scope of its diversity, not merely secular subgroups and secular ideas.

Dissenting Students in Government Schools

Do dissenting  students have a right to object to any ideas that are imposed upon them in the course of 13 years of public schooling? What of the conservative student who objects to the constant school-sponsored support for environmentalism, and multiculturalism, and (recently) Critical Race Theory?

As Justice Kennedy put it so clearly in Lee v. Weisman: “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....Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief formal prayer ceremony that the school offers in return. This argument cannot prevail, however...” [because of the Establishment Clause]

So, heckler's vetoes are bad and forbidden....except when they are good and required! Is this a little like heads the secular kids win, tails the religious kids lose? Does this double standard endorse a message of disapproval for religion?

The Case of the Devout Valdictorian

Suppose a public school allows the person with the highest GPA to speak at her commencement as the class valedictorian.  And suppose Mary Murphy, the 2021 valedictorian of Lincoln High, in pursuit of her theme concerning not giving up when times get tough, wishes to thank "her Lord and Savior Jesus Christ" for helping her get through some difficult times in her high school years.

Must the school censor her valedictorian address to comply with the Establishment Clause?

Or would it violate the Free Speech Clause if the school told her to remove all references to God, Jesus, and her Christian faith from the speech? What about Free Exercise?

Suppose a group of 3 or 4 students pray out loud in the cafeteria before eating lunch. Another student complains. What should the school do?

Topic For Discussion on School Prayer Decisions

 Think about this:

Does prayer in school, including in the classroom and during counseling sessions, an important part of k-12 learning for at least many families? Why or why not? Is moral character formation essential to k-12 learning? 

I would like many of you to share your thoughts on this question.

Also, think about this.By prohibiting voluntary prayer as not "part of the business of government" does the Court advance or restrict individual libety?

How does our society's commitment to diversity and inclusion impact on this issue? Are strictly secular public schools practicing diversity and inclusion of all families and all children?

Blog Posts For Monday August 30

 https://professorduncan.blogspot.com/2008/05/engel-v-vitale-question.html

https://professorduncan.blogspot.com/2015/01/lee-v-weisman.html 

 https://professorduncan.blogspot.com/2009/05/santa-fe-case.html

https://professorduncan.blogspot.com/2014/01/the-case-of-devout-valdictorian.html 

https://professorduncan.blogspot.com/2008/01/county-of-allegheny-how-they-voted.html 

https://professorduncan.blogspot.com/2015/01/america-and-religion.html 

https://professorduncan.blogspot.com/2014/01/neutrality-in-public-square.html 

https://professorduncan.blogspot.com/2020/01/allegheny-and-secular-state.html 

https://professorduncan.blogspot.com/2007/07/sleigh-full-of-toys-and-saint-nicholas.html 

https://professorduncan.blogspot.com/2020/01/thed-lemon-test-and-allegheny.html 

https://professorduncan.blogspot.com/2020/01/american-legion-v-american-humanist.html 

Government Grocery Stores and Religious Liberty

 Suppose Food Stamps could only be used at Government Grocery Stores where no Kosher (or other special religiously appropriate) food was stocked? Would this be a neutral benefit program for food security? What about the Free Exercise Clause? Would this program impose a substantial burden of the free exercise of religion?

Or better yet, suppose government grocery stores provide each person with a basket of food, selected not by the citizen but by government nutrition experts. No Kosher or religious food is included in the basket.Is this consistent with religious liberty and equality in a pluralistic society?