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

Fulton on Strict Scrutiny

 Here is what the Fulton Court says about the compelling interest test:

CSS has demonstrated that the City’s actions are subject to “the most rigorous of scrutiny” under those precedents. Because the City’s actions are therefore examined under the strictest scrutiny regardless of Smith, we have no occasion to reconsider that decision here.

A government policy can survive strict scrutiny only if it advances “interests of the highest order” and is narrowly tailored to achieve those interests. Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so.

The City asserts that its non-discrimination policies serve three compelling interests: maximizing the number of foster parents, protecting the City from liability, and ensuring equal treatment of prospective foster parents and foster children. The City states these objectives at a high level of generality, but the First Amendment demands a more precise analysis. Rather than rely on “broadly formulated interests,” courts must “scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” The question, then, 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.

Once properly narrowed, the City’s asserted interests are insufficient. Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents. As for liability, the City offers only speculation that it might be sued over CSS’s certification practices.

Such speculation is insufficient to satisfy strict scrutiny, particularly because the authority to certify foster families is delegated to agencies by the State, not the City. That leaves the interest of the City in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.

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

 

 

Is Cake Art?-- Meet The "Pistol Pete" Wedding Cake

 

This is a wedding cake. Here is the story from cake artists brief in Masterpiece:

"Another imaginative wedding cake (or in this case, a groom’s cake), had its origins in as unlikely a place as the pig barn at the Oklahoma State Fair. That was where the future bride and groom met. They were agriculture students at Oklahoma State University, “showing” pigs for the school. The details of how they met became a central part of their story as a couple. Accordingly, they asked Jennifer Jones of Icing On The Top to construct their story through cake so that they could exhibit it at their wedding reception.
The cake depicts Oklahoma State mascot “Pistol Pete” riding atop a pig. When finished, the cake was three feet high, weighing 125 pounds. The final result is both impressive and hilarious.
But it was also a monumental undertaking." 

This wedding cake tells this couple's  love story. It is art. It is speech. To compel a cake artist to create such a cake is to compel speech.

Prof. Akil Amar on Texas v. Johnson and Symbolic Expression:

"Symbolic Expression Is Fully Embraced by the First Amendment. - The flag is a symbol. So is the cross. The right to wield and manipulate these symbols is fully protected by "the freedom of speech, [and] of the press. ' The First Amendment does not speak of protecting only "words." The Amendment vests Americans with a broad right to communicate with each other. This communication takes place through symbols that represent ideas, events, persons, places, objects, and so on. In fact, words are themselves symbols. In English, words are made by combining 26 standard letters, but surely the Amendment protects communication in languages that rely on unique word-pictures, pictograms, or hieroglyphics. Surely there is no First Amendment difference between the word "cross" and the pictographic symbol "+"; between the letters "NAZI" and the crooked cross swastika hieroglyph...that represents the same ugly ideas; or between the words "American flag" and the unique red, white, and blue, star-spangled symbol impressed upon banners. Nor is it relevant for First Amendment purposes that one does not orally "speak" a flag or a cross the way one orally speaks words. Is a deaf citizen's communication by sign language unprotected because it is not oral? Does the flag not "speak" to us, in every relevant and nontrivial sense? Does not the cross in a worship service? Does not the written Constitution? In any event, even the most willful and stubborn literalist must recognize that the First Amendment yokes the freedom of speech to the freedom of the press and thereby signals an intent to embrace all communication, regardless of the precise medium of transmission. Quite literally, the unique ink marks printed and pressed upon a cloth are what make the cloth a flag in exactly the same way that the unique ink marks printed and pressed upon a sheet of paper make it the New York Times....

 If all of this seems to belabor the obvious, I hasten to point out that many of the participants in the flag-burning debate failed to understand these simple points. Again and again, they confused the
physical and the symbolic in speaking of their desires to protect the 'physical integrity' of the flag.  But the flag is, in its deepest sense, not physical. Like a word, it is a symbol, an idea. It cannot be destroyed; it is fireproof. One can destroy only single manifestations, iterations, or copies of the symbol."--106 Harv. L.Rev. at 133-135.

Now, think back to Jack Phillips and his custom wedding cakes in Masterpiece Cakeshop. Speech? Or non-speech? Is a custom wedding cake designed to express a message or an idea celebrating an event and the persons participating in an event (to paraphrase Prof. Amar)? Or is it just food, no different from a cheeseburger or a pizza?

Relative Harms

                                       Jack Phillips Painting a Masterpiece Cake

 Some commentators argue that the First Amendment should not be construed to protect free speech or religious liberty that causes harm to third parties. Thus, in Masterpiece Cakeshop, Jack Phillips should not be protected by the First Amendment because his refusal to create wedding cakes celebrating same-sex marriage caused "harm" to the gay couple whose request for a wedding cake was refused. What was the nature of the harm? Moreover, some commentators assert that the harm suffered is even more severe when the objection to providing the service is based upon a religious belief that the customer's conduct is sinful.

What are your thoughts about this? 

Is this a case in which there is harm on only one side?

If religious liberty must be suppressed when it causes harm to gay couples, should public accommodations laws be suppressed when they cause harm to wedding vendors? What harm did Jack Phillips suffer when he was ordered to create custom wedding cakes celebrating same-sex marriage? And who inflicted that harm on Jack?

As Professor Stephanie H. Barkley explains, “someone will always experience a cost or harm when government acts to protect, or not protect, any constitutional right.” Therefore, she argues, “we must broaden our lens to observe harms on both sides of the scale.”

If we look at harms on both sides of the scale, which party suffers the greater harm?

Let's talk about this in class.

Religious Liberty and Same-sex Marriage

 In his majority opinion in Obergefell v. Hodges, the decision in which the Court created a constitutional right to same sex marriage, Justice Kennedy reassured those who believe in traditional marriage that their beliefs would continue to be respected and protected. “Many who deem same-sex marriage to be wrong,” said Justice Kennedy, “reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” In even further reassuring dictum, Justice Kennedy continued: “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

Keep this statement of tolerance in  mind when reading cases such as Masterpiece and Fulton.  

How would a principle of mutual tolerance for competing views about the nature of marriage decide cases such as these?