Can a school district punish a student for what they post on social media?

Something to look forwarsd to--free speech in public schools:

 

https://twitter.com/FedSoc/status/1443241625514348544

Assignment for Monday October 4

We have two leftovers from last class to attend before moving on:

1. I will reserve the first 15 minutes of class for Q & A on the Ministerial Exception (the church autonomy doctrine)

2. Last time, I accidentally skipped over Cuomo. So let's spend 15 minutes discussing Cuomo and Covid restrictions. 

Then we will move on to the next assignment:

 7. Trinity Lutheran (Link); Espinoza (notice Justice Thomas's concurring opinion in particular) (link); The Next School Choice Case

 Video 14

https://use.vg/oE0YZ4

Masterpiece Cakeshop: Compelled Speech Issue

 The Court did not decide the Free Speech issue in this case. But Justice Kennedy's majority opinion did say this much:

The freedoms asserted here are both the freedom of speech and the free exercise of religion. 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.

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference.

 

What are your thoughts? Do custom wedding cakes express any ideas? Or are they no different from a biscuit or a croissant?

Fulton v. City of Philadelphia: Big Win For Religious Liberty

 Luke Goodrich reports:

#BREAKING: The Supreme Court just ruled UNANIMOUSLY that Philadelphia can’t shut down a Catholic foster-care ministry because of its religious beliefs about marriage. Some will try to say the ruling is “narrow.” Wrong. Five reasons this is HUGE:

 1. It is UNANIMOUS. This sends a powerful message that religious Americans are free to serve. They don’t have to change their basic beliefs about marriage and family in order to join hands across faith lines and serve the neediest in society.

 2. It shows that the infamous Smith decision--which narrowed the Free Exercise Clause--is not long for this world. There are at least 5 votes, likely 6, to overrule it. It’s only a matter of time before the Court restores even stronger protections for religious freedom.

 3. It adopts a rigorous test even under Smith. It says if a law lets the government make any case-by-case “exceptions,” even theoretically--which many laws do--the law is subject to strict scrutiny. This means gov't will have far less flexibility to restrict religious practices.

 4. It rejects the idea that constitutional protections go out the window when the government is entering “contracts” or managing “internal affairs.” This means the constitution applies rigorously across ALL government activities.

 5. It adopts a robust (correct) version of strict scrutiny—expressly rejecting the idea that the government can cite a general interest in “equality” or “dignity” to trump religious freedom.

 

And this from Roger Severino:

 

The most important line in Fulton: “The question [] is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.” To which the court answered with one voice, no. 1/4

 This means generalized interests in sexual orientation and gender identity discrimination laws cannot automatically force individual religious orgs and people to act contrary to their beliefs. This is huge. 2/4

 The constitution requires space for people of good will to live according to their views of marriage, family, and human flourishing in their daily lives even today, when it has fallen out of favor with some woke governments. 3/4

 The court didn't condemn these religious beliefs with facile race analogies because implicitly they acknowledge there's something so different, real, and unchanging in the nature of embodied human sexuality that even the liberals on the court won't call such people bigots. 4/4

 

And this from the Court's opinion:

"As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” Brief for City Respondents 1. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive."

Assignment For Tuesday September 28

6. Hosanna-Tabor decision (link); Our Lady of Guadalupe (link)
 

Video13

https://use.vg/kepE0g

 

 

Assignment For Monday September 27

 4. Masterpiece Cakeshop (link); My Article on Masterpiece ;

 

5. Cuomo ;Fulton v. City of Philadelphia

 

Video 12

https://use.vg/QtjIwB

Free Exercise Hypo

Suppose a public school decides to have a "mandatory assembly" featuring a speaker on "safe sex" education.

The parents of Mary Margaret Mahoney, conservative Christians who believe that so-called "safe sex" practices involving condoms are sinful, not responsible (they tell their children that God wishes them to refrain from sex until marriage and to be faithful within that marriage, not to practice "safe sex" outside marriage), request that their daughter be excused from the assembly. The school denies the request.

Do the Mahoneys have a Free Exercise right to an excusal from the "mandatory" assembly? What is the law and what kinds of facts do you need to search for in discovery?

Smith Decided Under Sherbert and Yoder

 Under the conduct exemption recognized by Sherbert and Yoder, how should the the free exercise claim in Smith have been decided?

Sun Tzu and the Art of Constitutional Law

Sun Tzu teaches that the enemy will always try to attack you at your weakest point.

Under the law of free exercise, the weakest point is when a free exercise claim is brought by an unpopular religious minority, such as the peyote-ingesting parties in Smith. In Smith, the Court gutted the Free Exercise Clause by holding that free exercise may be prohibited by generally applicable laws, and the outcry was small because the public saw this as an illegal drug case, not a religious liberty case. And yet, Smith is now the leading precedent in the Court's free exercise jurisprudence.

As Ben Franklin said, "we must all hang together, or most assuredly we will all hang separately." In other words, my free exercise rights will be no more and no less than those of members of small, unpopular religions.

Or as the Rev. Martin Niemöller said of Hitler and his secret police:

"First they came for the Jews, and I did not speak out because I was not a Jew.

Then they came for the Communists, and I did not speak out because I was not a Communist.

Then they came for the trade unionists, and I did not speak out because I was not a trade unionist.

Then they came for me, and there was no one left to speak out for me."

Smith Court’s misuse of precedent

Professor McConnell observed that Justice Scalia’s “use of precedent is troubling, bordering on the shocking.”   

Not only did Scalia create this idea of “hybrid” cases to get around otherwise controlling precedents such as Yoder, but the major precedent relied on by the Court, Minersville School District v. Gobitis, the first flag salute case, had been overruled three years after it was decided by West Virginia State Bd. of Educ. v. Barnette.  (“Relying on Gobitis without mentioning Barnette is like relying on Plessy v. Ferguson without mentioning Brown v. Board of Education."  57 U. Chi. L. Rev. 1124).  See also id.: “The second case cited by the Court, a Mormon polygamy case from 1879, was decided on the theory that the Free Exercise Clause protects only beliefs and not conduct – a premise that the Court repudiated in 1940.”

Free Exercise Issues to Think About

Suppose the law requires all businesses to serve all customers who are able to pay for the goods or services. Assume the law has no religious freedom exception? How should we handle these situations?

1. Should a Quaker landlord, who is a religious pacifist, be required to rent a building to a gun dealer? Or should religious liberty provide an exception to the law?

2. Should a landlord be required, over his sincere religious objections, to rent office space to the local chapter of the Ku Klux Klan?

3. Should a Jewish baker be required to decorate a cake for the local chapter of the American Nazi party?

4. Should a Muslim photographer be required to photograph a bachelor party that includes women stripping for the entertainment of the groom-to-be and his friends?

5. Should a Christian building owner, who believes in God's love of animals, be required to rent a factory for a fur coat manufacturer? Or for a butcher shop or slaughterhouse?

6. Should a Catholic adoption agency, which believes in the Biblical ideal of marriage as a relationship between one man and one woman, be required to place children with same-sex married couples?

7. What about a conservative Christian photographer who declines to participate in same-sex weddings?

Sometimes it is best to put yourself in the shoes of the other guy and see how he or she may look at issues that seem clear to you.

Yoder and Compelling Interest Test

Wisconsin argued that its compulsory education laws were compelling, because they were designed to ensure its interest in producing literate and self-sufficient citizens.   

Query: Is the state of Wisconsin holding the Amish to a standard it fails to meet itself? What should we do if we learn that, say, Milwaukee Public Schools are graduating students with poor reading and math skills? Or that many recent graduates of the public school system are on public assistance? Should we order the public school system closed and require families to educate their children in private schools that have  better results of producing literate and self-sufficient citizens?

Assignment For Monday September 20

 II. Free Exercise Clause

1. Reynolds case (Link); Casebook p. 1787-1794

 

Video:

 https://use.vg/gLSNWH

Assignment For Tuesday September 21

 2. Casebook p. 1794-1804

3.  Church of Lukumi Babalu Aye, Inc v. Hialeah, full text majority opinion only: 508 U.S. 520, from 520 to 547)

 

 Videos:

https://use.vg/5UDVno

https://use.vg/LSAJ6e

What Is Free Exercise?

" Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof - See more at: http://constitution.laws.com/1st-amendment#sthash.vjr5l61P.dpuf

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof - See more at: http://constitution.laws.com/1st-amendment#sthash.vjr5l61P.dpuf

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof - See more at: http://constitution.laws.com/1st-amendment#sthash.RE6wphSD.dpuf

What kind of religious exercise is protected by the FEC? Behavior "mandated" by one's faith? Or behavior merely "motivated" by one's faith? Is there a difference between these concepts?

Ninth Circuit Judge John Noonan, a former law prof and prolific scholar, perhaps has given us the best definition of what is protected by the FEC. In Peterson v. Minidoka County School Dist, 118 F. 3d 1351, 1356-1377, he called the free exercise of religion "the robust putting into practice of a person's religious beliefs," and went on to discuss the issue of mandated vs. motivated religious conduct:

"What is mandated by religion, however, is not to be equated with what is minimally required of adherents of a religion. What is mandated is what the individual human being perceives to be the requirement of the transhuman Spirit to whom he or she gives allegiance. To adapt a Holmesian phrase, what is mandated is a 'can't help.' The person who responds to the Spirit 'can't help' believing that the response is required. Francis of Assisi was exercising his religion when he gave his costly clothes to the poor; if a government had tried to prevent the gesture it would have violated his free exercise although he acted from no binding precept. What the Constitution protects is an act 'rooted in religious belief.'"

By the way, Free Exercise is not limited to actions that are "central" to one's religious beliefs as some commentators occasionally assert. Indeed, it would violate the Establishment Clause (entanglement) for federal courts to sit in judgment over whether a particular religious belief is central or non-central to one's religion.

The Free Exercise Clause is triggered by a law that substantially burdens a sincerely-held religious belief. Period.

Reynolds and Religious Polygamy

What did the Court mean when it said: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.?"

Does the Free Exercise Clause protect the "exercise" of religion, or only religious belief? Does "exercise" mean "exercise?"

Oliver Cromwell once made a similar statement about his devotion to freedom of religious conscience. Here's what Cromwell said:

"As to freedom of conscience, I meddle with no man's conscience; but if you mean by that, liberty to say the Mass, I would have you understand that in no place where the power of the Parliament of England prevails will that be permitted."

S. Hook, Paradoxes of Freedom 23 (1962)

What did Cromwell mean?


The Reynolds Court also expressed a fear of anarchy, of religious persons becoming a law unto themselves. What do you think?

In Reynolds, the Court expressed a concern that if they granted free exercise exemptions involving religious practices there would be no way to guard against human sacrifices. Is that a legitimate concern?

Finally, the Court seemed to think it was unfair to allow Mormons a free exercise exemption while secular polygamists ( such as, for example, Hugh Hefner should he desire to marry multiple "playmates") would have no exemption. What do you think of that concern?

Establishment Clause: A Concluding Note

Consider the following excerpt from Kent Greenawalt's book on the EC:

The most plausible reading of the original Establishment Clause–based on its text, the history leading up to its enactment, and legislation enacted by Congress–is that Congress could not establish a national religion, could not enhance or interfere with state establishments, and could not establish religion within exclusively federal domains. A purely “jurisdictional” reading that Congress could have established religion within federal domains is mistaken. Actions by the First Congress under the Constitution do, however, suggest that its members did not have an expansive view of what measures were “respecting an establishment of religion.”

Because any jurisdictional aspect of the Establishment Clause that protected state establishments had vastly diminished in significance by the time of the Fourteenth Amendment, that clause, as well as the Free Exercise Clause, has sensibly been incorporated against the states–assuming that incorporation of other clauses of the Bill of Rights is appropriate. The modern Supreme Court’s treatment of the scope of the religion clauses cannot be justified on originalist grounds, whether one concentrates on the original understanding of forbidden practices at the time of the adoption of the Bill of Rights or the original understanding of forbidden practices when the Fourteenth Amendment was adopted, but the latitude with which the Supreme Court has departed from these original understandings is no greater than it has exhibited with other parts of the First Amendment and with other guarantees in the Bill of Rights. Whatever bases one may have to criticize the Supreme Court’s religion clause jurisprudence, it is not distinctly unfaithful to original understandings.

This is an interesting way of looking at the Court's unfaithfulness to the written Establishment Clause. Is Prof. Greenawalt saying that since the Court has been unfaithful to other provisions of the Constitution, it is okay to be unfaithful to the EC as well.

Definition of "Religion" Under the First Amendment

In a religiously-pluralistic society such as ours, although the Court has never defined "religion" as such, it has also never denied protection to any follower of any conventional religious denomination or creed. Here is how one scholar describes where the Court is on the definition of religion:

"For now, all we can say is that the constitutional definition of religion remains unsettled. It certainly includes conventional religion, as the Founders assumed it would. It might--or might not--also include a broader set of moral beliefs and practices that are not conventionally religious."

Should secular moral beliefs, such as environmentalism, egalitarianism, and feminism, be included as religions within the meaning of the First Amendment? 

If "feminism" is a religious worldview within the meaning of the First Amendment, would the Establishment Clause forbid feminism from being endorsed in public schools and state universities? Some would argue that secular moral beliefs should be protected under the Free Exercise Clause as part of the "free exercise of Religion" but not subject to the restrictions of the Establishment Clause? But the word "religion" is used only once in the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof") so how could the exact same word mean one thing for Free Exercise and something else for Establishment?

Is Free Exercise Unfair to Secular Persons

Students occasionally are troubled by the fact that the Free Exercise Clause protects religiously motivated conduct but not conduct motivated by secular philosophies and preferences. If Student A can get a free exercise exception from school to participate in a religious holiday, why can't Student B get an excused absence to attend an Anime Convention or a Hip Hop concert?


Here is my quick answer to the "fairness" question:

True, secular preferences are not protected by the Free Exercise Clause. The idea is that religious liberty is in greater need of protection than mere secular preferences, because religious believers are subject to the law of both God and man. As Prof. McConnell once put it: "[F]ree exercise does not give believers the right to choose for themselves to override the socially-prescribed decision; it allows them to obey spiritual rather than temporal authority...The Free Exercise Clause does not protect the freedom of self-determination...; it does protect the freedom to act in accordance with the dictates of religion, as the believer understands them."

The idea goes back to Madison and the notion that religious believers are subject to two sovereigns--God and Caesar--and that God's claims on our behavior are "precedent both in order of time and degree of obligation, to the claims of Civil Society." Thus, Caesar is "under God." It is the same idea in the Pledge--one Nation under God. See quotation below.


And again, as Prof. McConnell puts it: "The Free Exercise Clause does not protect autonomy; it protects obligation....The concept is based on the view that the relations between God and Man are outside the authority of the state."


For example, what does a PFC in the army do when his General says "charge" and his Captain says "retreat"? Which of these inconsistent orders of senior officers must the private obey? As my friends in the military tell me, the military issue is more complex than a simple statement such as the one above. Suffice it to say, that once the Captain learns that his order is inconsistent with the General's order, the Captain will withdraw his order in recognition of the General's higher authority. Which is exactly what Caesar does under a Free Exercise regime--the Free Exercise Clause instructs the Captain (Caesar) to defer to the higher authority of the General (God).


Here is the money quote from "A Memorial and Remonstrance" by James Madison (1785):

1. Because we hold it for a fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority. 

Strict Scrutiny and Least Restrictive Means Element

Notice that most governmental interests are not compellingly important and, even if one is, under strict scrutiny the means must be necessary and narrowly tailored to advance that compellingly important governmental ends.

So consider the above from USA Today. The Rabbi was serving a 12-year prison sentence for kidnapping. Prison officials had a compelling interest in prison security to require a clean-shaven picture of the Rabbi. But the Rabbi's religious beliefs would not allow him to shave for the picture.

Is requiring him to shave necessary for the state to get its compellingly important  picture?

Is there a least restrictive means of getting the picture without restricting his religious liberty?

How about a virtual shave using computer software to remove the beard from the picture on the left?

Strict scrutiny requires the state to pass through a gauntlet of superlatives before restricting a highly protected constitutional right or employing a suspect classification under EPC.

Sherbert Edited Passage

The casebook does a bad job of editing Sherbert. It leaves out an important passage discussing how South Carolina law imposed a burden on appellant's free exercise rights. Here is the omitted passage:

We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant's religion. We think it is clear that it does. In a sense the consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State's general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry.  For "if the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect." Braunfeld v. Brown. Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.
Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's "right" but merely a "privilege." It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. ...To condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.

To deny, say, $2000 in unemployment benefits has the same economic effect as a $2000 fine or tax on the practice of Saturday worship. 

Supreme Court 2021-22: Goat-herding nuns, religious schools, prayer in the death chamber

 Becket Fund provides information about religious liberty cases currently before the Court:

WASHINGTON – Last year, in a range of cases concerning COVID-19, college campuses, the federal no-fly list, and foster care, the Supreme Court repeatedly strengthened religious liberty. In the upcoming 2021 Term, which opens October 4, the Supreme Court will have the opportunity to protect rural families and their children’s access to religious private school education, prisoner’s comfort of clergy in the death chamber, and goat-herding nuns from mandated abortion coverage in their insurance plan.

 

In Carson v. Makin, the State of Maine has a religious access discrimination problem. It provides funding to students in rural parts of the state who want to attend a secular elite prep school in another part of New England—or even overseas—but it won’t do the same for those who want to attend religious private schools down the street. Becket’s brief argues that this type of religious discrimination is unconstitutional because states can’t punish families and children for choosing religious schools. The Supreme Court agreed to hear the case in July of 2021 and oral argument is expected in late 2021 or early 2022.

 

In Ramirez v. Collier, a condemned man is asking for his pastor to pray for him in the death chamber. The State of Texas has refused to allow John Ramirez’s pastor to pray aloud for Ramirez, or hold Ramirez’s hand in prayer, in the death chamber. As one of the oldest religious exercises in human history, allowing clergy to assist the condemned at the moment of death is at the heart of religious liberty. Becket filed a friend-of-the-court brief in support of Ramirez’s emergency application at the Supreme Court last week. That application was granted and the case was scheduled for argument before the Court on November 1.

 

In Diocese of Albany v. Emami, nuns are back at the Supreme Court. This time, an order of nuns that provides healthcare services is among a coalition of religious groups fighting a New York state abortion mandate that would force them to cover abortion in their health plans. The mandate does have a narrow religious exemption—except Jesus himself wouldn’t qualify because Jesus served people of all faiths. That’s a problem for the Carmelite Sisters because they perform social work for people of all faiths. Becket and the law firm Jones Day have filed a petition to the Supreme Court, and a decision to take the case could come as early as October 8.

Too Many EC Tests?

 A few of you have told me you are getting confused by how many tests the Court seems to use for the Establishment Clause. I think this is the result of cases like Agostini, and Helms, and Zelman (and Zobrest and Witters),

But notice these cases were all decided under the (now) two-part Lemon/Agostini purpose and effect test. The discussion of neutrality plus indirection is just a way of demonstrating that none of the laws upheld in these cases had the effect of advancing religion or endorsing religious indoctrination. Everybody got secular remedial education, every deaf child got a sign-language interpreter, every low-income student in the failing public school system got a voucher, and so on. It is the same test applied to different factual situations. Rather than be confused, look for the pattern which should help you understand all of these cases.

Let's start class today focusing on this.

McConnell/Posner Economic Analysis of School Choice

 

McConnell/Posner Economic Analysis of School Choice – Views k-12 education as a benefit to each child (not to their parents). Each person (each child) receives one government-paid education at the school of his or her choice; each person then pays a lifetime of taxes to repay the educational “loan.” No one is taxed to pay for someone else’s “religious” indoctrination.

Everyone receives what amounts to a government loan for a k-12 education and everyone pays a lifetime of taxes to pay back that loan.

 

See An Economic Approach to Issues of Religious Freedom, Michael W. McConnell & Richard A. Posner, 56 U. Chi. L.Rev 1 (1989)