Everson v Board of Education (p.1763): Some questions to ponder

 What are the facts of Everson?

Who is the plaintiff?

What does this social spending program for students to have access to public transportation have to do with the Establishment Clause? Which of our Nation's children are undeserving of state aid to ensure that they get to school each day safely? Or do we care about all of our schoolchildren?

What is the "law" laid down by the Court in this case? (p. 1766)

The Court says that the state must be "neutral in its relations with groups of believers and non-believers"?

What does neutrality require in terms of k-12 education? Is a strictly secular education in the public schools neutral?

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 "a wall of separation between church and state"?

2. Does Congress mean state and local government?

3. What does "respecting" mean? Are there two sides to the word "respecting"?

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.

Stephanie Barclay Article: The Religion Clauses After Kennedy v. Bremerton School District

 Here is a link to this important 1A law review article:

 

LINK

 

Please read it as a preview to much of the course 

Insightful Free Speech Quotation

 "It’s not that it’s wrong to say 'freedom of speech isn’t absolute.' It’s that in almost every case the next sentence is wrong." --Casey Mattox

States Limit Pornography by Requiring Age-Verification Laws: How Should Free Speech Clause Apply?

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. This First Amendment course is about both of these times.