First Amendment Fall 2021 First Two Classes

 Welcome to the First Amendment course, a course that examines the First Amendment in quite a bit of depth.

For our first two classes of First Amendment, please read the assignment noted below (Casebook: Varat, Amar & Caminker Constitutional Law (16th Edition)(Foundation Press 2021). This is the same book I assigned for all my Con Law courses):

 -- Skim (just skim) this: Duncan article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, available here (free download) :  Dreisbach  article; Casebook p. 1763-1779

--  Engel v. Vitale (Link).;Allegheny County case (link); Kennedy case (link); Our class discussion will focus primarily on: the American Legion case p. 1801-1812 and on the Kennedy case

 
You should also watch the first four First Amendment videos:

Video Number One 

Video Number Two 

Video Number Three 

Video Number Four

 Students have told me that they find this recorded sessions very helpful. We will discuss these issues in class on Monday and Tuesday.

 

 

Coach Kennedy Video

 Coach Kennedy Video

 

By the way, the school district recently announced that  "it had reach[ed] an agreement to settle a claim for Kennedy’s attorney fees for $1,775,000." --https://www.union-bulletin.com/sports/wire/bremerton-school-board-approves-settlement-with-coach-over-on-field-prayer/article_72d14fb0-c73c-11ed-8cdd-c376d716f95b.html

Zorach Questions and Hypos

 The Court says that the 1A "studiously defines the manner, the specific ways, in which" Church and State shall be kept separate. Where is that studious and specific list? Does the 1A even mention the idea of separation of church and state?

Now consider four different "time release" programs plus one more example of accommodation.

1. The one in Zorach, in which students (whose parents request) are released from one class per week to attend a religious program of their choice.

2. A Jewish student is granted an excused absence to observe Yom Kippur or a similar holy day.

3. A Catholic student's parents request that he or she be excused from a "mandatory assembly" on "safe sex" and STDs.

4. During Ramadan, a holy month of fasting and prayer for Muslims, NYC public schools release Muslim students from classes for 10 minutes per day and allow them to go to an empty classroom for communal prayer.

5. Recently, NYC public schools installed "foot baths" in rest rooms to accommodate Muslim students who need to wash their feet before prayer during Ramadan. Does this violate the EC?

Do any of these excusals violate the EC? Should they be struck down? Are any of them required by the Free Exercise Clause?

Links to Blog Posts for First Amendment Number Two

 https://professorduncan.blogspot.com/2006/07/for-todays-class-zorach-hypos.html

 https://professorduncan.blogspot.com/2006/07/zorach-question.html

https://professorduncan.blogspot.com/2008/01/lemon-test-secular-purpose-prong.html 

https://professorduncan.blogspot.com/2007/07/lemons-purpose-test.html 

https://professorduncan.blogspot.com/2006/07/advance-or-inhibit.html 

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

 https://professorduncan.blogspot.com/2007/07/kosher-food-stamps.html

https://professorduncan.blogspot.com/2021/01/france-prohibits-veils-in-public-schools.html 

 

Religious Purpose and Facial vs. As Applied Challenges

In the Santa Fe case, did anyone ever pray or deliver an invocation at a football game? Which prayer? Which invocation? How did the Court know that an unspoken student statement, one that might have had secular content or might have had religious content, was somehow an establishment of religion?

We will never know what would have happened, will we? How did the Court know that some uncertain future expression, of unknown content, somehow constitutes an establishment of religion?

What was the move the Court used to strike down these laws without any record about what in fact might be said or left unsaid?

Notice that the Court's general rule about facial vs. as applied challenges is that facial attacks are disfavored if there is any possible application of a law that would be constitutional. Instead of invalidating a law root and branch, the Court will wait for unconstitutional applications of the law to come before it and will enjoin the unconstitutional applications, while permitting the constitutional applications to be given effect. See United States v. Salerno, 481 U.S. 739, 745 (1987) (a Pl bringing a facial challenge against a law "must establish that no set of circumstances exists under which the Act would be valid").

How does this rule apply in Santa Fe? Should the Court have waited to see how the policy would have been applied?

For more on the Lemon "purpose" prong, see here.

Santa Fe Case

Although there was a history of various types of school prayer in this school district, this case concerns a school policy that allowed students to vote on whether to allow a student to deliver a message, statement or invocation at home football games. P.1702

The issue in this case is whether pregame invocations are speech attributed to the government which is prohibited by the EC, or private student speech which is protected by the Free Speech and Free Exercise Clauses. See p. 1703 “crucial difference....”

How much government involvement do we have here?

‒ School has set up an election process to determine whether a student elected by her classmates may deliver a "message, statement, or invocation" before varsity football games.

‒ Student chosen by the majority gets preferred access to public address system and an audience that has come to participate in a school activity.

‒ The policy “invites and encourages” religious messages. (p. 1704). How so? So what? Liberty interest?

- In this context, the audience at football games “must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration.” (p. 1705) So what?

‒ endorsement of religion

‒ School sponsorship of a religious message is impermissible. Why? See P. 1705:

"School sponsorship of a religious message is impermissible because it sends the
ancillary message to members of the audience who are nonadherents 'that they are
outsiders, not full members of the political community, and an accompanying message
to adherents that they are insiders, favored members of the political community.'”

What message does the Court's censorship of religious speech send to students whose faith is an important part of their identity?

– government may not use social pressure (to attend a football game) to enforce religious orthodoxy. (p.1706) What social pressure? What religious orthodoxy?


What actually happened at the games? Was any prayer ever said under this policy?

Notice the Court strikes down the policy under a facial challenge, because the purpose of the policy violated the EC – its purpose was to endorse student prayer at football games. (p. 1707).

Why should we think that the school's permitting students to elect a student speaker amounts to an endorsement of religion? Why not view it as an endorsement od the democratic process and of student expression?

County of Allegheny: How they Voted

1. A. Creche Unconstitutional, Menorah Constitutional: Blackmun & O'Connor
2. B. Both Unconstitutional: Stevens, Brennan & Marshall
3. C. Both Constitutional: Kennedy, Scalia, Rehnquist & White
   

Thus, A plus B equals 5-4 decision that the creche is unconstitutional; and A plus C equals 6-3 decision that the menorah is constitutional,

Engel v. Vitale: A Question

 Board of Regents wrote a prayer and school board directed the School District's principal to cause the prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day. 

It was a voluntary prayer--no child was compelled to recite the prayer.

The prayer was a non-denominational harmless single sentence: “"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

This short prayer is comparable to the opening ceremony for sessions of the Supreme Court of the United States. Here is how the Court itself (https://www.supremecourt.gov/about/procedures.aspx) describes its opening ceremony:

 

“When the Court is in session, the 10 a.m. entrance of the Justices into the Courtroom is announced by the Marshal. Those present, at the sound of the gavel, arise and remain standing until the robed Justices are seated following the traditional chant: ‘The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!’"

 

New York Court of Appeals upheld the daily prayer activity so long as the school does “not compel any student to join in the prayer over his or her parents’ objection.” (P. 1) [This court applied the Coercion Test, a test that protects individual liberty from compelled religious activities]

SCOTUS held that a voluntary daily prayer violates the incorporated EC because it amounts to an "endorsement" of prayer or an "encouragement" to recite the prayer. It also said the "constitutional wall of separation" required the prayer to be enjoined and that this was "no part of the business of government." P. 2.

What liberty interest is being protected by the EC in this case?

Or is liberty being restricted by the Court's reading of the EC in the sense that those who wish to recite the prayer are being denied the opportunity to do so? See Stewart's dissent: "I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."

How would Engel come out under a coercion test, such as in Barnette (the Pledge case discussed in my article)? See my Heckler's Veto article at p.263 (Judge Easterbrook on Pledge jurisprudence: "So long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance.") You protect liberty by protecting liberty, not by censoring the speech of others.

Is the voluntary prayer in Engel different from voluntary recitation of "under God" in the Pledge of Allegiance? Should the EC be interpreted to forbid the one and permit the other?

Notice the Court admits that it is not seeking to advance any real liberty interest: "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not."  P. 3.

So again I ask: How did a non-liberty test somehow get incorporated as a 14th Amendment "liberty" protected from "deprivation" by the states?

The Handful of Words that We Will Be Studying

Here is the relevant text of the First Amendment: 

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

In Everson, we immediately need to worry about  three things:

1. Where does it say anything about separation of church and state?

2. Does Congress mean state and local government?

3. What does "respecting" mean?

Now consider the 14th Amendment:

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Church, State and the Constitution

As we begin our discussion of the Establishment Clause, I want you to journey back into the recesses of time, back to the days before you were a law student. Go back to your high school and college days, perhaps, and ask yourself "what was the story I was taught about the role of religion in the public square."

Maybe you were told this story in high school, or college. Somewhere you were discussing the subject of, say, a Ten Commandments display in a public park in Corny, Nebraska, and some teacher or speaker told you the story of what the First Amendment says about "church and state."

Think about that story and be prepared to share it with the class.

It Was the Best of Times, It Was the Worst of Times

In many ways, we are living through the worst of times for religious liberty (and for secular liberty as well). I never thought I would live to see churches ordered closed by operation of law. Yet, we have indeed witnessed that in the recent past. Justice Gorsuch recently described what has happened to us:

"Since March 2020, we may have experienced the greatest intrusions on civil liberties in the  peacetime history of this country.  Executive officials across the country issued emergency  decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal  sanctions too.  They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and  hygiene requirements could amount to criminal conduct. They  divided  cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent." --Arizona v. Mayorkas (2023) 

Even when people of faith were permitted to meet for services, some government officials prohibited them from singing songs of praise and worship. And, of course, they also financially ruined many restaurants and small businesses, seriously harmed k-12 education for a generation, closed beaches and playgrounds for children, and covered our faces, our smiles, and our human dignity with cloth and paper masks. We must never forget these things.

But a recent speaker at the law college said that in terms of recent Supreme Court decisions, religious liberty is stronger than ever.

Both of these statements are true. Attacks on religious liberty are ubiquitous today; but when they come, the First Amendment is increasingly able to protect people of faith from religious persecution. So as Dickens said in A Tale of Two Cities, it is the best of times and it is the worst of times.

Jefferson as a Public School Adminstrator

                                              Daveed Diggs as Jefferson on Broadway
 

Here is a little bit of history that makes you think about religion in the public schools and the Establishment Clause: 

Jefferson was the first school board president for the public schools in the District of Columbia. In fact, an historian of the District of Columbia public schools credits Jefferson as "the chief author of the first plan of public education adopted for the city of Washington.” Interestingly (perhaps devastatingly for those who revere Jefferson as a strict separationist), the first official report on file indicates that the principal books then in use in the District of Columbia public schools were the Bible and Watts Hymnal.

See Wilson, Eighty Years of the Public Schools of Washington-1805 to 1885, 1 RECORDS OF THE COLUMBIA HISTORICAL SOCIETY 122 (1897).

So, think about this when we read the school prayer cases and cases forbidding public schools from endorsing religion.