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? Here is Judge Easterbrook on Pledge of Allegiance 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?

Imagine: A Sleigh Full of Toys and Saint Nicholas Too

That is how I refer to Justice O'Connor's approach to Nativity displays in public parks under her infamous "endorsement" test. In other words, according to the Court, serving as a National Board of Interior Decorators, a Nativity display is probably okay so long as the display includes "a sleigh full of toys and Saint Nicholas too." Or a least a few plastic elves and perhaps a "talking wishing well."

County of Allegheny is an interesting case because we see two of the Court's EC tests (the third, of course, is Lemon/advance or inhibit):

1. the Lemon/endorsement test: This is a gloss on the Lemon test that states that for a government practice to be constitutional under the Establishment Clause, neither its purpose nor its effect must endorse a message approving or disapproving of religion. Thus, in Allegheny  the Christmas display would be unconstitutional if a "reasonable observer" (who's that?) would view the display as conveying a message of endorsement of religion, "a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the political community."(p. 4)

When you see a Cinco de Mayo display in a public school or public park, do you perceive the "message" as one of inclusion or one of intolerance? In other words, is the display endorsing Mexican-Americans as favored members of the community and non-Mexicans as disfavored members of the community? Or is the display merely a recognition that a subgroup of our community is celebrating a holiday and the government is merely being inclusive and acknowledging that fact? If the Cinco de Mayo display is merely an inclusive recognition of a holiday that is important to a subgroup in the community, how is a Nativity scene (without elves and wishing wells) somehow an intolerant attack on non-Christians? 
The government often puts up a display not so much to recognize the underlying message of the display, but rather merely to recognize that a subgroup in the community is celebrating something that is special to them. As Kimberly Colby has suggested, when New York City put up a memorial plaque commemorating John Lennon and his song "Imagine," the City was not thereby endorsing his lyrics imagining the splendor of "no religion too." Was it? Or do you believe that the courts should enjoin NYC from displaying the John Lennon plaque under the EC and the Endorsement Test? Here is a link describing the Lennon Strawberry Fields/Imagine Memorial.


2. the coercion test--as Kenendy states it: "government may not coerce anyone to support or participate in any religion or its exercise." 

These are very different tests, the first one enforces a structural limitation on government power to "endorse" a religious holiday; the latter one protects a liberty interest to be free from forced participation in a religious ceremony or practice.

The former one often invalidates even a passive display that is perceived to endorse religion; the latter would almost never invalidate a mere display (since averting the eyes is almost always an option for those who take offense at the display).

3. Now consider how the original Constitution has "evolved" by judicial decree:

The Original, Enduring Constitution

Congress shall make no law respecting an establishment of religion


The Living, Breathing, Created Constitution

[Neither] Congress [nor state or local government] shall [put up any public display endorsing religion]

What do you think? Who should decide on the decorating of local parks and buildings? The local officials elected to make local decisions? Or the Supreme Court of the United States?

More on the Endorsement Test

Consider this excerpt from Allegheny: 

 In Lemon v. Kurtzman, supra, the Court sought to refine [Establishment Clause] principles by focusing on three "tests" for determining whether a government practice violates the Establishment Clause. Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.  This trilogy of tests has been applied regularly in the Court's later Establishment Clause cases.

Our subsequent decisions further have refined the definition of governmental action that unconstitutionally advances religion. In recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of "endorsing" religion, a concern that has long had a place in our Establishment Clause jurisprudence. Thus, in Wallace v. Jaffree, the Court held unconstitutional Alabama's moment-of-silence statute because it was "enacted . . . for the sole purpose of expressing the State's endorsement of prayer activities."

 

Allegheny on Endorsement test:

Of course, the word "endorsement" is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred."  Moreover, the term "endorsement" is closely linked to the term "promotion," and this Court long since has held that government "may not . . . promote one religion or religious theory against another or even against the militant opposite." Whether the key word is "endorsement," "favoritism," or "promotion," the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community."

On the difference between the Lynch nativity display and the Allegheny nativity display:

The concurrence applied this mode of analysis to the Pawtucket creche, seen in the context of that city's holiday celebration as a whole. In addition to the creche, the city's display contained: a Santa Claus house with a live Santa distributing candy; reindeer pulling Santa's sleigh; a live 40-foot Christmas tree strung with lights; statues of carolers in old-fashioned dress; candy-striped poles; a "talking" wishing well; a large banner proclaiming "SEASONS GREETINGS"; a miniature "village" with several houses and a church; and various "cut-out" figures, including those of a clown, a dancing elephant, a robot, and a teddy bear. The concurrence concluded that both because the creche is "a traditional symbol" of Christmas, a holiday with strong secular elements, and because the creche was "displayed along with purely secular symbols," the creche's setting "changes what viewers may fairly understand to be the purpose of the display" and "negates any message of endorsement" of "the Christian beliefs represented by the creche."

But whether a Nativity display stands alone or is accompanied by a sufficient number of elves and talking wishing wells, why should we think that it endorses religion rather than merely recognizing that a subgroup in the community is celebrating a special holiday?

Here is what I say in my article about all this:

In County of Allegheny v. American Civil Liberties Union,[1] the Supreme Court was asked to decide whether a Christmas display located on public property in Pittsburgh violated the incorporated Establishment Clause. The challenged display was a nativity scene that depicted “the infant Jesus, Mary, Joseph, farm animals, shepherds, and wise men, all placed in or before a wooden representation of a manger, which has at its crest an angel bearing a banner that proclaims ‘Gloria in Excelsis Deo?’”[2] This display was placed on the Grand Staircase of the Allegheny County Courthouse.[3] The Court applied the endorsement test and held that the Nativity Scene was an unconstitutional endorsement of “a patently Christian message: Glory to God for the birth of Jesus Christ.”[4]

But who was harmed by this passive recognition that Christmas is a special season for many residents of Pittsburgh and Allegheny County? Whose liberty was restricted by the mere placement of this display on the staircase of a public building? Justice O’Connor argued that the Christmas display was harmful because it conveyed “a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the political community.”[5]

But why should we think this is so? If we consider the Christmas display, together with all the other displays and expressions in the public culture of Pittsburgh over the course of any given year, why isn’t the message merely one of inclusion and recognition that the community is composed of many equally valued subgroups who celebrate many different holidays and ideas? For example, if Pittsburgh were to display a poster celebrating Cinco de Mayo in the Grand Staircase of the courthouse would Justice O’Connor perceive this as endorsing a message that Latinos were favored members of the political community and non-Latinos were of second class status in the community? When a public school celebrates Black History Month, should Asians or Latinos view the celebration as sending a message of favored and disfavored racial or ethnic status? Does a Gay Pride poster in a public school send a message of favored and disfavored membership in the political community? Or should all of these passive displays be viewed as government merely recognizing that it represents a pluralistic society, one composed of many equally-valued subgroups. There is nothing wrong or harmful when government creates a public culture that recognizes the rich religious, ethnic, racial, and cultural diversity of the community it represents.

                Indeed, it might be more reasonable to view the religious cleansing of Pittsburgh’s public culture pursuant to the Court’s decree in Allegheny County as endorsing a message of disapproval of religion. Certainly Justice Kennedy interpreted the Court’s strict separationist view of the Establishment Clause as reflecting “an unjustified hostility toward religion.”[6] As Kevin Seamus Hasson observes, if religious displays are cleansed from a public culture open to a vast multitude of nonreligious displays, the resulting message is not one that is neutral toward religion:

It’s impossible for the government to be silent on religion in culture because its silence itself speaks volumes. If the government were uninvolved in our culture generally, there would be no problem with it being uninvolved in our religious expression. But it’s not uninvolved at all. The government is a major force in the culture. It celebrates everything from National Catfish Day to National Jukebox Week. It proclaims national holidays to commemorate a wide variety of things, from Thanksgiving to Memorial Day to Martin Luther King Day. It runs a comprehensive public school system that purports to teach children what they need to know about everything from literature to sex. It provides public universities that not only educate in the arts, but are a major venue for their performance and display, as well as a formidable intellectual force in the debate about them. And the government’s reach extends even further. It actually underwrites the arts of its choosing. Taken together, the government-run educational system, its subsidy of the arts, its proclamation of holidays all combine to create a cultural force of seismic proportions.[7]

Moreover, as Steven Smith notes, “alienation produced by Supreme Court decisions may be even more severe than alienation provoked by actions of legislatures or lower government officials.”[8] This is so, because when the Supreme Court cleanses religion from the public culture in the name of the Constitution, it sends a message to people of faith that “their central beliefs and values are incompatible with the fundamental and enduring principles upon which the Republic rests.”[9]

It seems clear that if the Court were truly concerned about religious liberty under the incorporated Establishment Clause, it would not allow offended observers the right to censor this harmless, passive nativity display from the public square. In Allegheny County, the Court applied the Establishment Clause not to advance anyone’s religious liberty,[10] but rather to grant one group of citizens the power to deprive another group of citizens an opportunity to view and enjoy the nativity display. In other words, as Justice Kennedy correctly observed, the Court in County of Allegheny actually created a heckler’s veto pursuant to which the Court, at the request of offended observers, acted “as a censor, issuing national decrees as to what is orthodox and what is not.”[11]

Thoughts?

---

[1] 492 U.S. 573 (1989).

[2] Id. at 580.

[3] Id. at 578.

[4] Id. at 601.

[5] Id. at 626 (O’Connor, J., concurring).

[6] Id. at 655 (Kennedy, J., concurring in part and dissenting in part).

[7] Hasson, supra note 101, at 128.

[8] Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 311 (1987).

[9] Id.

[10] As Justice Kennedy emphasized, Pittsburgh’s Nativity Display was merely “passive and symbolic” and offended observers were free to “ignore” it, to avert their eyes from it, “or even to turn their backs” to it. Allegheny County, supra, 492 U.S. at 662, 664 (Kennedy, J., concurring in part and dissenting in part).

[11] Id. at 678.

The Endorsement Test is Completely Subjective

 Notice how Justice Blackmun interpreted the menorah display, which the Court upheld. This display involved a "memorah...standing next to a Christmas tree and a sign saluting liberty." Would a reasonable observer view this display as an endorsement of religion? 

Justice Blackmun, assuming the role of reasonable observer, says don't worry, it is perfectly copacetic:

 In these circumstances, then, the combination of the tree and the menorah communicates, not a simultaneous endorsement of both the Christian and Jewish faiths, but instead, a secular celebration of Christmas coupled with an acknowledgment of Chanukah as a contemporaneous alternative tradition.

Although the city has used a symbol with religious meaning as its representation of Chanukah, this is not a case in which the city has reasonable alternatives that are less religious in nature. It is difficult to imagine a predominantly secular symbol of Chanukah that the city could place next to its Christmas tree.....

The mayor's sign further diminishes the possibility that the tree and the menorah will be interpreted as a dual endorsement of Christianity and Judaism. The sign states that during the holiday season the city salutes liberty.... Here, the mayor's sign serves to confirm what the context already reveals: that the display of the menorah is not an endorsement of religious faith but simply a recognition of cultural diversity. 

 

Would the average Pittsburgher say to his friends and fellow Steeler fans, "hey, yinz, take a look at that great recognition of cultural diversity over der"? Justices Brennan, Marshall, and Stevens view the Chanukah display as an endorsement of Judaism. The endorsement test is completely subjective, like the art of interior decoration. Everyone has a different opinion of the message conveyed by any particular holiday display.

Now consider Justice Kennedy's dissent:

There is no suggestion here that the government's power to coerce has been used to further the interests of Christianity or Judaism in any way. No one was compelled to observe or participate in any religious ceremony or activity. Neither the city nor the county contributed significant amounts of tax money to serve the cause of one religious faith. The creche and the menorah are purely passive symbols of religious holidays. Passersby who disagree with the message conveyed by these displays are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech....

Our role is enforcement of a written Constitution. In my view, the principles of the Establishment Clause and our Nation's historic traditions of diversity and pluralism allow communities to make reasonable judgments respecting the accommodation or acknowledgment of holidays with both cultural and religious aspects. No constitutional violation occurs when they do so by displaying a symbol of the holiday's religious origins.  

Passive Displays in Public Places

 Let me start with a general question before we discuss the Establishment Clause issue in this case. 

Suppose a gay-lesbian group got permission from the city of Pittsburgh to put up an artistic display celebrating “Marriage Equality Month.” 

The display was located on the Grand Staircase of the County Courthouse. 

Further suppose that another group of citizens, calling themselves the “moral majority,” publicly demanded that the City remove the display.   

Would it be correct to refer to this attempt to get rid of the 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? 

Now suppose the display is a Christmas Nativity display?

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.1774

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. 1774  “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. 1776). How so? By whom? 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. 1776) So what?

‒ endorsement of religion

‒ School sponsorship of a religious message is impermissible. Why? See P. 1776:

"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.1777) 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. 1778).

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 of the democratic process and of student expression?

Prof. Kavanaugh's Black Letter EC Formulation

 As we leave the Establishment Clause behind, you should keep in my Justice ("Professor") Kavanaugh's summary of the current EC doctrine from his concurrence in American Legion:

"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in  history and tradition; or (ii) treats religious people, organizations, speech, or activity equally   to  comparable  secular  people,  organizations,  speech,  or  activity;  or  (iii) represents  a   permissible  legislative  accommodation  or  exemption  from  a  generally applicable law, then  there ordinarily is no Establishment Clause violation. The   practice   of   displaying   religious   memorials,   particularly   religious   war  memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ." Casebook p. 1808

ZORACH V. CLAUSON (p. 1769)

Released time programs.  Upon written request by parents, school allows students to be released early from school to “go to religious centers for religious instruction or devotional exercises.”  The program involved only 1 hour per week.  343 U.S. at 308. Students were only released upon written request of parents. 

Does this violate the Establishment Clause?

Notice in McCollum the Court struck down a released time program which allowed religious teachers to come into the public schools to provide religious instruction to students whose parents requested such instruction. P. 1770

    What do you think about that kind of program? Is it different in a significant way from the program in Zorach? 

Lemon Test

 

 

 The “Three-Part Lemon Test”
In cases decided after 1971, it is common to begin opinions concerning the
establishment clause by reciting standards summarized in Chief Justice Burger’s opinion for the Court in Lemon v. Kurtzman, 403 U.S. 602, 612–613 (1971). To be valid against attack under the Establishment Clause:

 “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ”

Despite their apparent simplicity, the three “Lemon standards”—which will be examined time and again in the cases to follow—have substantial ambiguities and remain controversial. --Casebook p. 1768

 

 Under the Lemon test, government may not advance or inhibit religion.

If we take this test seriously, and apply the no inhibition rule with the same enthusiasm as the no advancement rule, where would we end up?

What kinds of governmental laws, activities, and policies have the effect of inhibiting religion?

What are your thoughts?

 

Purpose Prong

 

Consider the following examples under the Lemon test.

Assume that back in the 1960s, the state legislature of Nebraska has had a religious experience after listening to a sermon on race and poverty delivered by the Rev. Martin Luther King. Convinced that Jesus would be pleased if it took action, the Nebraska legislature states that "for the purpose of obeying the commands of Christ to love our neighbor as we love ourselves and to help the poor and the oppressed," it legislates a law outlawing discrimination on the basis of race in places of public accommodation and a law providing health care to children from non-affluent families.

Are these laws facially unconstitutional under the Lemon test? Is it wrong for a state legislature to pass laws helping those in need of help if they are primarily motivated by their religious convictions?


By the way, MLK had a lot to say about justice and the law, a topic he engaged forcefully in his historic "Letter from Birmingham City Jail," an open letter, dated 16 April 1963, to "My dear Fellow Clergymen" designed to explain Dr. King's decision to engage in peaceful acts of civil disobedience. Here is an excerpt in which he explains the difference between a "just" law and an "unjust law":

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer is found in the fact that there are two types of laws: there are just and there are unjust laws. I would agree with Saint Augustine that "An unjust law is no law at all"

Now what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority, and the segregated a false sense of inferiority. To use the words of Martin Buber, the great Jewish philosopher, segregation substitutes an "I-it" relationship for the "I-thou" relationship, and ends up relegating persons to the status of things. So segregation is not only politically, economically and sociologically unsound, but it is morally wrong and sinful. Paul Tillich has said that sin is separation. Isn't segregation an existential expression of man's tragic separation, an expression of his awful estrangement, his terrible sinfulness? So I can urge men to disobey segregation ordinances because they are morally wrong.

What do you think? Are Dr. King's views about justice more or less persuasive because of the clear religious source of his understanding of just and unjust laws? If the Government acts based upon MLK's notion of just laws, would it violate the Establishment Clause?

Fall 2025 First Amendment Syllabus

                                 Jack Phillips of Masterpiece Cakeshop (art by Joshua Duncan)

"We may not shelter in place when the Constitution is under attack." --Gorsuch on Free Exercise

 

 

Richard F. Duncan: Room 220 Law,
email:rduncan2@unl.edu

 

Free Speech and Academic Freedom: At UNL Law (and in this class) we strictly respect the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds. In the words of Justice Gorsuch, "learning how to tolerate speech or prayer of all kinds is 'part of learning how to live in a pluralistic society,' a trait of character essential to "a tolerant citizenry.'"

 

General Information: This class will meet on M-T-W from 1:30 p.m. until 2:30 p.m in Room 113.  In addition, I am assigning videos of my teaching of many of the cases we will read this session. Notice that this class meets for 60-minutes per class.  Therefore, we will meet 35 times (as opposed to the 42-class sessions for a 50-minute class). This will allow us to cancel seven (7) classes during the Semester without the need for make-up sessions. In addition, the video lectures will allow us to cancel an additional 3 (3) classes without the need for make-up classes. Two of those 10 classes will be canceled on the Monday and Tuesday before Thanksgiving Break; so you will have that entire week to rest and be grateful for the many blessings in your lives. We will probably cancel the last week of classes by using 3 more of our pre-made-up days.

Office Hours: Regular office hours are in the lobby in front of the library immediately after class on Tuesdays and Wednesdays. I will also give you my cell phone number and we can always arrange for a phone call. Please do not hesitate to text or email me to set up a phone call. I work mostly from home, and I am happy to chat on the phone, whether to answer questions or discuss the Constitution.

Attendance Policy: Live, in person class attendance is required. Zoom attendance will not be an option.  I often use problems discussed in class as the clay from which I sculpt exam questions. Absences may be excused at my discretion, provided the student seeks permission before or soon thereafter. If you miss class, you should get class notes from classmates for the class you missed. I don't routinely record classes, so please be aware that missing class means missing the substance of what was covered in that class. 

SNOW DAY Policy: If the University declares a snow day (or cancels classes for a more important sports event), we will have a snow day. I am 100% finished with Zoom. We will use one of our pre-made-up classes to cover it. I may also declare a snow day. If it is snowing, be sure to check the blog to see whether I have cancelled classes due to unsafe road conditions. I hate automobile insurance claims. For other general policies see: https://uofnelincoln.sharepoint.com/sites/UNL-Law-Students/SitePages/College-and-University-Policies.aspx

Grading: The exam for this course will be in person, in the classroom and on the day scheduled for the exam. The exam will be completely closed book. Your grade for the course will be based 100% upon your performance on the exam. The exam will be a combination of medium and shorter essay questions.

Book: Varat, Amar & Caminker Constitutional Law (16th Edition)(Foundation Press 2021). This is the same book I assigned for all my Con Law courses.

I will post links to the videos for many topics, and I will inform you which assignments the recorded classes cover.

Be sure to check this blog every day for announcements, additional required and optional reading, and discussion of cases and issues raised in the reading. In fact, if you scroll down you will see that I will soon be posting a couple of items for our first class discussion.

LIST OF ASSIGNMENTS (some adjustments may be forthcoming)


I. Establishment Clause

1. Read (as a Preview) Stephanie Barclay's article The Religion Clauses After Kennedy v. Bremerton School District (free download here): Dreisbach article; Casebook p. 1763-1779

2.  Engel v. Vitale (Link).;Allegheny County case (link); Stone v Graham, 449 U.S. 39 (1980) (get PDF from Hein on Line); Kennedy v. Bremerton School District (link); Our class discussion will focus primarily on: the American Legion case p. 1801-1812 and on the Kennedy case and Stone v Graham.

3. Legislative Prayers: Marsh v. Chambers (link); Town of Greece (casebook p. 1792-1801). When reading the Town of Greece opinions, do not overlook Justice Thomas' concurring opinion
(at p. 1797) in which he speaks of the EC as a "federalism provision." What does that mean?

4. Widmar v. Vincent (Link);Casebook p.1813-1826; Rosenberger (link); Rosenberger Oral Argument: https://www.oyez.org/cases/1994/94-329

5. Casebook p. 1827-1856

II. Free Exercise Clause

1. Reynolds case (Link); Casebook p. 1856-1886;; Cuomo ; Tandon (link);Fulton (link); Mahmoud v. Taylor (link)

 

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

3.  Trinity Lutheran (Link); Espinoza Casebook p. 1886-1900(notice Justice Thomas's concurring opinion in particular) ; Carson v. Makin (link)

 

4. City of Boerne case (casebook p. 1214-1223); Casebook p. 1900-1907; Groff v. DeJoy (link)(follow link to opinion)

5. Nebraska First Freedom Act (2024): Nebraska Revised Statute 20-701 to 20-705 (link)

 

III. Free Speech: Content and Viewpoint Restrictions, Public Forum Analysis, Public Schools, Subsidized Speech, Compelled Speech, Expressive Association, and Election Campaign Speech

1. Reed v. Town of Gilbert (Casebook p. 1514-1518); Casebook p. 1459-1482;  Snyder v. Phelps (link)

 

2 Casebook p. 1482-1499; Casebook p. 1520-1541; Mahanoy School District

3. Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592;

4.Casebook p. 1597-1609; Barnette (link); Wooley v Maynard (link); 303 Creative (link); my article on the no-compelled-speech doctrine (link); Prof. Garnett's article on 303 Creative (link)

 

5. Libel and slander: casebook p. 1315-1330 (New York Times v Sullivan, Gertz, Dun & Bradstreet)

6. Christian Legal Society v. Martinez (link);Citizens United (link)

 

7. Freedom of Speech of Government Employees: Pickering (link);. Connick (link); Garcetti (link); Discussion of 6th Circuit decision in Meriwether v. Hartrop (blog post to be provided)

 

If time permits:

 

 7. Obscenity and Pornography: Read the cases (Stanley, Smith, Miller, Jenkins) and discussion set forth here (link) ; handout articles from Washington Post (Halverson) and ABA (Stone article)


                       End of Duncan's Syllabus: And now for something completely different.

_____________________________________________________________________________

ABA Requirements for Study: The ABA requires students to spend approximately two hours studying out of class for every hour spent in class. I should not have to even mention this—because you spend much more than 2 hours per class hour preparing for class and studying the materials—but to satisfy the powers that be in the ABA, I am hereby explicitly and emphatically requiring you to spend at least 2 hours studying this course for each one hour spent in class. I anticipate that you will spend the out-of-class time reading and re-reading class materials until you have mastered the issues and reasoning of the cases and problems, thinking rigorously about the materials, writing notes both before and after each class on the materials and issues assigned for that class and discussed in class, reading and thinking about the posts I write on our class blog and discussing materials with your classmates. Obey the ABA!
 




                             "Learning Outcomes"

Basically, I am old school about "learning outcomes." This is law school, not community college, so our major focus is on developing a sophisticated legal intellect by careful legal analysis of cases, statutes, constitutional text, and hypotheticals. Every day my job is to try to make the assignments and class discussions as challenging, clear, lucid and helpful as I can. Your job is to prepare for class, pay careful attention in class, participate in class discussions, and master the materials, questions, concepts, and issues we cover. Your individual outcomes depend in large part on how much effort you put into studying and class discussions. All of this being said, here are the "learning outcomes" for this course. If you work hard to master the course, you will:

(1) acquire a deep understanding of the First Amendment of the US Constitution including free speech, free exercise, and the establishment clause

(2) develop a deep understanding of Supreme Court case law interpreting the First Amendment, including important dissenting and concurring opinions in landmark cases

(3) acquire a deep understanding of statutory protections of religious liberty, such as RFRA and RLUIPA

(4) become familiar with the political forces and policy rationales that shape First Amendment law

(5) Gain insight into the many ways that the First Amendment protects religious diversity and intellectual diversity in a society as deeply-divided on first principles as our Nation has become.

The primary means of assessing these outcomes is your self-assessment during and after each class. You should evaluate what you learned in each class when you review your notes and thoughts from each class.

Volunteering for discussion during class is also an excellent means of assessment. 

The final exam is, as always, the more formal method of assessing many of these outcomes.


 A Message From The Dean, A Message From The Dean

"If you think you will need any disability-related accommodation to succeed in this class, please contact the Dean's Office and/or the Office of Services for Students with Disabilities as soon as possible for a confidential conversation."