As I said in class yesterdays, today we will discuss compelled speech and the last two cases from the syllabus:
Christian Legal Society v. Martinez (link);Citizens United (link)
The web log for Prof. Duncan's Constitutional Law Classes at Nebraska Law-- "[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual. In the eyes of government, we are just one race here. It is American. " -----Justice Antonin Scalia If you allow the government to take your liberty during times of crisis, it will create a crisis whenever it wishes to take your liberty.
Justice Ginsburg begins her opinion with this statement: "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."
Is this true? If CLS had won under the right of expressive association, would it be "a preferential exemption?" Or would every other student group have had an equal right to expressive association? Would an LGBT group have been allowed to deny leadership to a student who opposed same-sex marriage? Would a animal rights group have been allowed to deny leadership to an avid hunting enthusiast? Would a Civil Rights group been allowed to deny admission to a member of the KKK?
CLS was not seeking preferential treatment; it was only asking the Court to protect the 1A right of expressive association from Hastings restrictive student group policies.
--Finish Tuesday's Assignment
--.Casebook p. 1597-1613; my article on Telescope Media (link); discussion of 303 Creative
I deleted the link to the Telescope Media opinion. I don't want to overwork you with only 2 days to go.
--Finish discussion of cases concerning free speech in public schools
-- Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592; Casebook p. 1597-1613;
--Finish last Friday's Assignment
--Casebook p. 1482-1499;
If time permits, we may get started on this material:
Casebook p. 1520-1541; Mahanoy School District
Here is the SCOTUSblog preview by Kalvis Golde:
In the Equal Employment Opportunity Act of 1972, Congress strengthened the religious protections in Title VII of the Civil Rights Act by requiring employers to accommodate all aspects of their employees’ religious beliefs and practices, unless doing so would impose “undue hardship” on the business. Five years later, the court stated in Trans World Airlines v. Hardison that an employer suffers undue hardship if accommodating an employee’s religion would require “more than a de minimis cost.” This week, we highlight cert petitions that ask the court to consider, among other things, whether to revisit Hardison’s more-than-de-minimis-cost test.
Gerald Groff worked as a mail carrier for the U.S. Postal Service in Pennsylvania. An Evangelical Christian, Groff observes a Sunday Sabbath. When USPS signed an agreement with Amazon in 2013 to deliver packages on Sundays and holidays, Groff was initially able to avoid working Sundays by picking up extra shifts during the week – and eventually transferring to another post office. But as demand for deliveries increased, the accommodations wore thin. Groff soon received multiple disciplinary actions for refusing to work on Sundays.
Facing termination, Groff chose to resign, and sued USPS in federal court for refusing to accommodate his religious beliefs and practices under Title VII. The trial court ruled for the Postal Service under Hardison, and the U.S. Court of Appeals for the 3rd Circuit affirmed. Exempting Groff from work on Sundays imposed a more than de minimis cost on USPS, the appeals court held, because it forced his coworkers to pick up more than their share of Sunday shifts – at the expense of their own religious observance or family time – and weakened workplace morale at the post office.
In Groff v. DeJoy, Groff asks the justices to dispose of Hardison’s more-than-de-minimis-cost test. Inconvenience to coworkers does not qualify as a business cost to USPS, Groff reasons. But even if it does, he argues, an undue hardship means a significant burden, while his inability to work on Sundays imposes only a minor hurdle. Other petitions have asked the court to jettison Hardison’s test in recent years, and although the court has yet to take up the issue, at least three justices have indicated their interest in doing so.
I really enjoyed our class discussion yesterday about whether football is a religion in America.
By the way, I do believe that there is an established religious philosophy in America, but it is not football. Just look around as you go about living, and it will become apparent. For example, what kinds of words and ideas are you afraid to express as you go about your life here in the Law College and everywhere else? Who are the gods whose names you are afraid to take in vain? What truths do you believe that you are afraid to declare?
How you answer these questions for yourselves will reveal the secular worldview that has become the established religion of America in 2023.
1. Reed v. Town of Gilbert (Casebook p. 1514-1518); Casebook p. 1459-1482; Snyder v. Phelps (link)
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.
1. We will finish discussing the Establishment Clause Materials (mostly focus on Zelman)
2. Reynolds case (Link); Casebook p. 1856-1863
Let me start with a general question before we discuss the Establishment Clause issue in these cases.
Suppose an LGBT group got permission from the city of Pittsburgh to put up an artistic display celebrating “Marriage Equality Week.” The display was located on the Grand Staircase of the County Courthouse. Further suppose that another group of citizens, calling themselves the “family values coalition,” publicly demanded that the City remove the display.
Would it be correct to refer to this attempt to get rid of the marriage equality display as censorship? As what the law calls a hecklers’ veto?
If the City removed the display to appease the protesters, would this be a case in which liberty was advanced or one in which liberty is inhibited?
Should we allow offended observers, who could easily have averted their eyes from the display, to deprive the willing audience for the display of an opportunity to view and enjoy it?
If so, again apart from the Establishment Clause, is the attempt in the Allegheny County case to remove the Creche and Menorah displays accurately referred to as censorship?
Now let me read you a comment and get your response to it:
The Establishment Clause does not expressly require government to engage in censorship of the art government chooses to sponsor. The First Amendment is generally quite hostile to censorship of all kinds. Therefore, in the absence of clear historical evidence demonstrating that the Establishment Clause was designed to require that which the First Amendment generally forbids, the Court should not interfere with public displays celebrating events of historical or cultural significance merely because they contain or recognize symbols of religious significance.What are your comments?
The Town of Greece majority opinion was also not persuaded by the argument that prayer at town board meetings “coerces participation by nonadherents.”Although there was no actual coercion or intimidation of those wishing not to pray, Respondents argued that some members of the public might feel “subtle pressure” to join in prayers in order to please town board members “who would be ruling on their petitions." In the alternative, Respondents argued that they found the prayers offensive and this made them feel “excluded and disrespected.” The Supreme Court rejected all of these arguments reasoning that “mature adults” should have the capacity to resist subtle pressure and to either leave “the meeting room during the prayer” or remain in the room and quietly decline to join in the prayer. Moreover, in response to Respondents’ argument that sectarian prayers offended them and hurt their feelings, the Court essentially instructed them to grow up and get over it:“Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.”In other words, neither subtle pressure to participate nor hurt feelings will suffice to give mature adults a constitutional right to enjoin legislative prayer at town board meetings. Religious liberty under the Establishment Clause does not give dissenters a heckler’s veto over the practice or content of legislative prayers. Or, as Justice Kennedy put it so clearly in Town of Greece, “[s]o long as the town maintains a policy of nondiscrimination,” government does not “engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”
Some Money quotations:
It turns out the ACLU can’t cancel Baby Jesus. A federal appeals court just ruled that the nativity scene at the Jackson County courthouse can stay, making it one of the first federal appeals courts to apply the Supreme Court’s recognition that religious displays like nativity scenes are allowed their place in the public square. The three wise men and the shepherds can now rest easy.
And this:
The Seventh Circuit Court of Appeals said that the County’s display “fits within a long national tradition of using the nativity scene in broader holiday displays to ‘depict the historical origins’ of Christmas—a ‘traditional event long recognized as a National Holiday.’”When SCOTUS speaks the lower courts listen.