Two Clear EC Rules

1. Although the Supreme Court’s Establishment Clause jurisprudence is at times conflicting and nearly indecipherable, there are two clear rules that emerge from the cases.  First, government “may not delegate a governmental power to a religious institution.”  Or, in the words of Prof. Carl Esbeck:
(“Government cannot delegate civil authority to a religious organization.” This is Larkin v. Grendel's Den.
 
2. Second, government “may not discriminate among persons on the basis of their religious beliefs and practices.” In his article on Restatement of the Supreme Court’s Law of Religious Freedom, Professor Esbeck stated this second principle as follows: “Government cannot confer a benefit on religion if the benefit is not available to others similarly situated.” See Barense.

Notes on Barense case

Sunflower Field Near Hickman, Nebraska (photo by Rick Duncan)


1. The court indicates that the free snow removal services "had not been available to other property owners in the town including other non-profit institutions or charitable institutions." Okay, suppose the town did offer free snow removal to all non-profit institutions, including religious non-profits." Apply the EC.

2. Suppose a city provides free snow removal to all secular non-profits but specifically excludes religious non-profits. Does this policy inhibit religion under the EC? Does it violate the Free Exercise Clause?

3. Suppose a city provides free snow removal to private non-profit institutions providing abortion services. Under this program, Planned Parenthood receives free snow removal but the pro-life Crisis Pregnancy Center does not. I sue claiming the program violates my rights under the Free Exercise Clause (since my taxes are being used to subsidize abortion providers). What result? Do I even have standing to bring this action? Recall Justice Gorsuch's concurrence in American Legion and "offended observer" standing.

Larkin v. Grendel's Den: The Rule

Under the EC, Government may not delegate civil authority (such as veto power over liquor licenses) to a religious organization. Or as Prof. Tribe puts it, the state is "absolutely" prohibited from vesting governmental powers to a religious body. "Thus, any degree of vesting entanglement--not merely 'excessive entanglement'--is prohibited."

Summum Case

Here is the issue in the case--Is the Ten Commandment display Government speech covered by the E.C. and Van Orden? If so, what result?

Or is the display the private speech of the Eagles (the group that donated the display in 1971) in which case we may have some kind of designated public forum governed by the Free Speech Clause? If the latter, then when Summum's Seven Aphorisms display is denied access to the park, Summum may be protected by the Free Speech Clause against content or viewpoint based exclusion.

If you were counsel to a strict-separationist group offended by Grove City's 10 Commandments Display, what would you do? Play Don Quixote and lose under Van Orden? Or try to come up with a new strategy, one that would force the City to remove the 10 Commandments display or be required to accept each and every display donated by anyone?

If the Court had held that Grove City had created a forum for private speech by accepting permanent monuments from private groups or individuals, how would the Free Speech analysis have gone?

Assuming the Free Speech Clause would require the City to refrain from censorship of private speech when receiving donations of monuments and memorials, and thus would require the City to accept and display Summum's Seven Aphorisms Monument, would the City also be required to accept and display a monument praising the September 11th terrorists? A monument donated by the KKK praising White Supremacy?

Here is the key passage from Summum:

We think it fair to say that throughout our Nation's history. the general government practice with respect to donated monuments has been one of selective receptivity." p.3

Although the Court says that "[p]ermanent monuments displayed on public property typically represent government speech," (p. 3) because the government accepts the monument in order to convey its own speech to the public, it also says that there are "limited circumstances" in which the government might create a permanent monument for the purpose of allowing private speakers to convey their message. p. 5

For example, suppose after the Columbine shootings, the local public school created a "wall of memory" and allowed survivors and their parents and friends to purchase a brick to be placed in the wall as part of this permanent memorial. Parents and friends were allowed to write their own memorials on the bricks (e.g. "to Bobby, who loved his school and his family" or "to Betty, from her friends in the LGBT community" or "love and tolerance is the answer to violence"). However, when John and Jane Doe, parents of Mary Doe, a student who was killed at Columbine, engrave "in memory of Mary Doe, who loved her Savior, Jesus" on their brick, the school refuses to place it on the memorial because --eek, a mouse--the Establishment Clause forbids this religious statement on a memorial in a public school.

Analyze this problem.


Scalia in Summum:

What the heck did Scalia mean when he said this?:

"The city ought not fear that today's victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire."

McCreary County

Justice Souter's majority opinion states that the EC "mandates governmental neutrality between religion and religion, and between religion and nonreligion."

What does neutrality between religion and nonreligion mean? Could McCreary County have placed a nonreligious display on the walls of courthouses? If this is permitted, what does neutrality between religion and nonreligion require when the county wishes to put up a religious display? If nonreligious displays standing alone are permitted under EC neutrality, what does the principle of neutrality between religion and nonreligion require when a county wishes to display the Ten Commandments?

Is the Court serious about the principle of neutrality between religion and nonreligion? Or does the Court's EC jurisprudence appear to demand a preference for nonreligion over religion?

What do you think of Justice Scalia's powerful dissent? Here is an unedited version of his argument about neutrality:

"On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”

That is one model of the relationship between church and state–a model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins “France is [a] . . . secular . . . Republic.” France Const., Art. 1, in 7 Constitutions of the Countries of the World, p. 1 (G. Flanz ed. 2000). Religion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America. George Washington added to the form of Presidential oath prescribed by Art. II, §1, cl. 8, of the Constitution, the concluding words “so help me God.” See Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, 73 UMKC L. Rev. 1, 34 (2004). The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.” 1 C. Warren, The Supreme Court in United States History 469 (rev. ed. 1926). The First Congress instituted the practice of beginning its legislative sessions with a prayer. Marsh v. Chambers, 463 U.S. 783, 787 (1983). The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. Id., at 788. The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “ a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.” See H. R. Jour., 1st Cong., 1st Sess. 123 (1826 ed.); see also Sen. Jour., 1st Sess., 88 (1820 ed.). President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789 on behalf of the American people “ ‘to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be,’ ” Van Orden v. Perry, ante, at 7—8 (plurality opinion) (quoting President Washington’s first Thanksgiving Proclamation), thus beginning a tradition of offering gratitude to God that continues today. See Wallace v. Jaffree, 472 U.S. 38, 100—103 (1985) (Rehnquist, J., dissenting).1 The same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Id., at 52, n. (a). And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection.

These actions of our First President and Congress and the Marshall Court were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. The “fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.” School Dist. of Abington Township v. Schempp, 374 U.S. 203, 213 (1963). See Underkuffler-Freund, The Separation of the Religious and the Secular: A Foundational Challenge to First-Amendment Theory, 36 Wm. & Mary L. Rev. 837, 896—918 (1995). President Washington opened his Presidency with a prayer, see Inaugural Addresses of the Presidents of the United States 1, 2 (1989), and reminded his fellow citizens at the conclusion of it that “reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.” Farewell Address (1796), reprinted in 35 Writings of George Washington 229 (J. Fitzpatrick ed. 1940). President John Adams wrote to the Massachusetts Militia, “we have no government armed with power capable of contending with human passions unbridled by morality and religion. … Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Letter (Oct. 11, 1798), reprinted in 9 Works of John Adams 229 (C. Adams ed. 1971). Thomas Jefferson concluded his second inaugural address by inviting his audience to pray:

“I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.” Inaugural Addresses of the Presidents of the United States, at 18, 22—23.

James Madison, in his first inaugural address, likewise placed his confidence “in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future.” Id., at 25, 28.

Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto “IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” As one of our Supreme Court opinions rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952), repeated with approval in Lynch v. Donnelly, 465 U.S. 668, 675 (1984); Marsh, 463 U.S., at 792; Abington Township, supra, at 213.

With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “ ‘the First Amendment mandates governmental neutrality between … religion and nonreligion,’ ” ante, at 11, and that “[m]anifesting a purpose to favor . . . adherence to religion generally,” ante, at 12, is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only 5 nays in the House of Representatives, see 148 Cong. Rec. S6226 (2002); id., at H7186, criticizing a Court of Appeals opinion that had held “under God” in the Pledge of Allegiance unconstitutional. See Act of Nov. 13, 2002, §§1(9), 2(a), 3(a), 116 Stat. 2057, 2058, 2060—2061 (reaffirming the Pledge of Allegiance and the National Motto (“In God We Trust”) and stating that the Pledge of Allegiance is “clearly consistent with the text and intent of the Constitution”). Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century. v. See ante, at 11, citing Corporation of Presiding Bishop of Church of Jesus Christ of Latter&nbhyph;day SaintsAmos, 483 U.S. 327, 335 (1987), in turn citing Lemon v. Kurtzman, 403 U.S. 602, 612 (1971), in turn citing Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 243 (1968), in turn quoting Abington Township, supra, at 222, in turn citing Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15 (1947).2 And it is, moreover, a thoroughly discredited say-so. It is discredited, to begin with, because a majority of the Justices on the current Court (including at least one Member of today’s majority) have, in separate opinions, repudiated the brain-spun “Lemon test” that embodies the supposed principle of neutrality between religion and irreligion. See Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398—399 (1993) (Scalia, J., concurring in judgment) (collecting criticism of Lemon); Van Orden, ante, at 1, 6 (Thomas, J., concurring); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 720 (1994) (O’Connor, J., concurring in part and concurring in judgment); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655—656, 672—673 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Wallace, 472 U.S., at 112 (Rehnquist, J., dissenting); see also Committee for Public Ed. and Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting) (disparaging “the sisyphean task of trying to patch together the ‘blurred, indistinct, and variable barrier’ described in Lemon”). And it is discredited because the Court has not had the courage (or the foolhardiness) to apply the neutrality principle consistently.

What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that–thumbs up or thumbs down–as their personal preferences dictate. Today’s opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, ante, at 11, n. 10, the Court acknowledges that the “Establishment Clause doctrine” it purports to be applying “lacks the comfort of categorical absolutes.” What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. The footnote goes on to say that “[i]n special instances we have found good reason” to dispense with the principle, but “[n]o such reasons present themselves here.” Ibid. It does not identify all of those “special instances,” much less identify the “good reason” for their existence."

Ten Commandments Cases

Check out the Duke Law video on Van Orden


I would like each one of you to ponder the following two questions:



1. Opponents of Ten Commandments displays won in McCreary and proponents won in Van Orden. Who do you think won the most in these two cases--opponents or proponents? Why?



2. How would you advise, say, a school board that wished to put up a display in the schools--for educational purposes--truthfully and properly depicting the role of religion in the history and culture of the United States?

Consider this passage from Justice Breyer's concurring opinion (he was the 5th vote) in Van Orden:

"If these factors provide a strong, but not conclusive, indication that the Commandments' text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to "engage in" any "religious practic[e]," to "compel" any "religious practic[e]," or to "work deterrence" of any "religious belief." Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage."

3. Now consider this excerpt from the Religion Clause blog about recent Ten Commandments legislation in Oklahoma:

Oklahoma Legislature Authorizes 10 Commandments At Capitol

AP reported yesterday that the Oklahoma House of Representatives, by a vote of 83-2, has passed HB 1330, the Ten Commandments Monument Display Act [full text, Word doc]. The bill, previously passed by the Senate, now goes to Gov. Brad Henry for his signature. It provides in part:

The State Capitol Preservation Commission ... is hereby authorized to ... arrange for the placement on the State Capitol grounds of a suitable monument displaying the Ten Commandments. The ... monument shall use the same words used on the monument at issue in Van Orden v. Perry, that the United States Supreme Court ruled constitutional. This monument shall be designed, constructed, and placed on the Capitol grounds by private entities at no expense to the State of Oklahoma....

In the event that the legality or constitutionality of the Ten Commandments monument is challenged in a court of law, the Oklahoma Attorney General or Liberty Legal Institute is hereby authorized to prepare and present a legal defense of the monument.

The placement of this monument shall not be construed to mean that the State of Oklahoma favors any particular religion or denomination thereof over others, but rather will be placed on the Capitol grounds where there are numerous other monuments.

The family of Rep. Mike Ritze, sponsor of the bill, will pay the $10,000 cost of the monument.

McCreary, Religious Purpose, and Neutrality

Notice in McCreary Justice Souter talks about Lemon's requirement of "a secular legislative purpose," talks about a religious purpose as "an illegitimate purpose," and says the idea behind the Lemon test is to ensure "governmental neutrality between religion and religion, and between religion and nonreligion."

Hmmm. Let's think about the concept of neutrality between religion and nonreligion? Is calling a religious purpose "illegitimate" and mandating a predominant secular (i.e. a nonreligious) purpose,while forbidding a predominant religious purpose, neutral as between religion and nonreligion? Does the Lemon test as applied by Justice Souter violate itself by elevating the secular over the religious and thus flunking the requirement of neutrality "between religion and nonreligion?"

I am thoroughly confused?

Justice Thomas' "liberty" test seems so much more workable than a test that requires non-neutral neutrality between "illegitimate" religion and legitimate nonreligion. Under the liberty test, neither religious purposes nor secular purposes are classified as illegitimate. Both are legitimate and a matter for the democratic process. The EC is violated only when a State coerces or compels a person to participate in a religious activity. Both secular displays and religious displays are "legitimate" and the remedy for a person offended by either kind of passive public display is to takes a few steps to avoid it or turn his or her head to avert the eyes.

Which test is more neutral between religion and nonreligion? Souter's or Thomas'?

American Legion Case: Snow Day Makeup

In lieu of a makeup for last Friday's snow day, I would like you to listen to the oral argument in the American Legion case. See Assignment 3.

Here is the link.

Next Wednesday's Class

For next Wednesday's class, take a look at examples 1 and 4 on blog post "Zorach Questions and Hypos" and try to apply the Lemon test to these problems.

Do they have a secular purpose? If their purpose is to protect religious liberty, is that a religious purpose or a secular purpose? Is religious liberty the same thing as religion?

Who is harmed by these efforts to accommodate religious students who are required to attend public school?

Then we will move on to the school prayer cases.

Class Cancelled Friday January 17

I am cancelling class today. We will be having a double session in a few weeks when we listen to the Rosenberger oral argument together and then discuss the case (see Assignment 7). That will be our make-up session.

Be safe and have a great MLK weekend!

Casebook--Pages For First Two Assignmemts Available

I understand that the Book Store doesn't yet have our casebook for some reason.

I copied the first two assignments. You can find them in the handout rack outside the Southside Faculty suite on the second floor of the law library.

Arlene's Flowers at SCOTUS

Here is a link to SCOTUSblog's coverage of this case: Link

This is a 1A cert petition many are watching closely

Wallace v. Jaffree and a Moment of Silence

Whose liberty is deprived by a law that allows each student a "period of silence 'for meditation or voluntary prayer?'"


No one was required to pray and each student was free to think or reflect on any subject or none at all. Each student was free to pray, or meditate, or reflect on his Little League batting average, or worry about whether the Social Security system would remain solvent for her generation of future retirees. 

So how does this harmless law violate the incorporated Establishment Clause?

Was the legislature's purpose somehow unconstitutional? Was the pupose to advance religion or to advance religious liberty by clearing up "a widespread misunderstanding that a schoolchild is legally prohibited from engaging in silent, individual prayer once he steps inside a public school building."

How do we know what was the legislature's purpose? Are the views of one legislator controlling?

I conclude in my article that this decision by the Court amounts to a judicially-imposed heckler's veto, one that allows one group of citizens (the offended observers) the power to deny another group of citizens  a brief opportunity to engage in silent prayer. 

Am I wrong? Or am I right?

Please prepare to take both sides of this issue for class discussion.

Con Law II Students Spring 2020

Welcome to Con Law II. I don't use Canvas to communicate with my students. I prefer to use this blog. Please check the blog often for information about the course and for the many substantive issues I post here.

The assignment for our first class is to prepare assignment #1 on the syllabus below. See you next week!

By the way, that picture above is from a famous Free Speech case that we will study later this semester.

The Impossibility of Objectively Applying the Endorsement Test

Consider Prof. McConnell's position:

 First the very “goal” of the endorsement test, according to Justice O’Connor, is to identify a principle that is “'not only grounded in the history and language of the first amendment, but one that is also capable of consistent application to the relevant problems.'” Yet this goal of consistency is the test’s greatest failing. There is no generally-accepted conception of what “endorsement” is, and there cannot be. Whether a particular governmental action appears to endorse or disapprove religion depends on the presuppositions of the observer, and there is no “neutral” position, outside the culture, from which to make this assessment. The bare concept of “endorsement” therefore provides no guidance to legislatures or lower courts about what is an establishment of religion. It is nothing more than an application to the Religion Clauses of the principle: “I know it when I see it.”

For example, does a Nativity display in a public park “endorse” the Christian belief in Jesus? Or does it merely recognize that one part of the community is celebrating a religious holiday? Or does excluding religious displays and memorials from public parks open to all sorts of secular displays and memorials send a message of disapproval of religion?

Telescope Media Oral Argument

Link

Scalia Interview September 2010

Link


Backup

Exam Review Session--Monday December 3

Monday December 3 @ 1:30 PM
in the Courtroom