Endorsement vs. Disapproval

Excerpt from my article:

 

But when evaluating a public culture such as ours, in which government endorses many things and celebrates many causes,[1] how are we to determine whether a Christmas nativity display in a local park or public school endorses religion, or whether the removal of such a display by a federal court injunction endorses a message of disapproval of religion? Why are citizens who celebrate Christmas marked as favored insiders when the Christmas display is only one of hundreds appearing in the public square in the course of any given year? Indeed, when a religious display is singled out and cleansed from a public square open to all sorts of secular displays by a federal court applying the endorsement test, doesn’t this judicial decree tell the religious display’s willing audience that they are outsiders and less than full members of the political community?

---

[1] See Kevin Seamus Hasson, The Right to Be Wrong: Ending the Culture War Over Religion in America 128 (2005) (observing that government “celebrates everything from National Catfish Day to National Jukebox Week.”) I would add that government also celebrates many ethnic and cultural causes such as Cinco de Mayo, Gay Pride Month, Black History Month, Earth Day and Kwanza. A truly “neutral” public culture in a pluralistic society should recognize and celebrate the full scope of its diversity, not merely secular subgroups and secular ideas.

Dissenting Students in Government Schools

Do dissenting  students have a right to object to any ideas that are imposed upon them in the course of 13 years of public schooling? What of the conservative student who objects to the constant school-sponsored support for environmentalism, and multiculturalism, and (recently) Critical Race Theory?

As Justice Kennedy put it so clearly in Lee v. Weisman: “To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And tolerance presupposes some mutuality of obligation....Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief formal prayer ceremony that the school offers in return. This argument cannot prevail, however...” [because of the Establishment Clause]

So, heckler's vetoes are bad and forbidden....except when they are good and required! Is this a little like heads the secular kids win, tails the religious kids lose? Does this double standard endorse a message of disapproval for religion?

The Case of the Devout Valdictorian

Suppose a public school allows the person with the highest GPA to speak at her commencement as the class valedictorian.  And suppose Mary Murphy, the 2021 valedictorian of Lincoln High, in pursuit of her theme concerning not giving up when times get tough, wishes to thank "her Lord and Savior Jesus Christ" for helping her get through some difficult times in her high school years.

Must the school censor her valedictorian address to comply with the Establishment Clause?

Or would it violate the Free Speech Clause if the school told her to remove all references to God, Jesus, and her Christian faith from the speech? What about Free Exercise?

Suppose a group of 3 or 4 students pray out loud in the cafeteria before eating lunch. Another student complains. What should the school do?

Topic For Discussion on School Prayer Decisions

 Think about this:

Does prayer in school, including in the classroom and during counseling sessions, an important part of k-12 learning for at least many families? Why or why not? Is moral character formation essential to k-12 learning? 

I would like many of you to share your thoughts on this question.

Also, think about this.By prohibiting voluntary prayer as not "part of the business of government" does the Court advance or restrict individual libety?

How does our society's commitment to diversity and inclusion impact on this issue? Are strictly secular public schools practicing diversity and inclusion of all families and all children?

Blog Posts For Monday August 30

 https://professorduncan.blogspot.com/2008/05/engel-v-vitale-question.html

https://professorduncan.blogspot.com/2015/01/lee-v-weisman.html 

 https://professorduncan.blogspot.com/2009/05/santa-fe-case.html

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

https://professorduncan.blogspot.com/2008/01/county-of-allegheny-how-they-voted.html 

https://professorduncan.blogspot.com/2015/01/america-and-religion.html 

https://professorduncan.blogspot.com/2014/01/neutrality-in-public-square.html 

https://professorduncan.blogspot.com/2020/01/allegheny-and-secular-state.html 

https://professorduncan.blogspot.com/2007/07/sleigh-full-of-toys-and-saint-nicholas.html 

https://professorduncan.blogspot.com/2020/01/thed-lemon-test-and-allegheny.html 

https://professorduncan.blogspot.com/2020/01/american-legion-v-american-humanist.html 

Government Grocery Stores and Religious Liberty

 Suppose Food Stamps could only be used at Government Grocery Stores where no Kosher (or other special religiously appropriate) food was stocked? Would this be a neutral benefit program for food security? What about the Free Exercise Clause? Would this program impose a substantial burden of the free exercise of religion?

Or better yet, suppose government grocery stores provide each person with a basket of food, selected not by the citizen but by government nutrition experts. No Kosher or religious food is included in the basket.Is this consistent with religious liberty and equality in a pluralistic society?

Covid Protocols Fall 2021

 I am copying below the new Covid protocols announced today by Chancellor Green.

Since I am fully vaccinated, I will not wear a mask in class. Wearing a mask makes it almost impossible for me to teach to the best of my abilities. However, anyone who wishes to wear a mask (or two masks), is welcome to do so.

Here are the new guidelines which you should take care to comply with:

Use of Personal Protection

As noted previously, our classrooms will return to full in-person capacity this Fall, as will our dining halls, Campus Recreation, Unions, Libraries, and other public spaces.

Those who are fully vaccinated are not required to wear face coverings, but are strongly encouraged to do so indoors. You have likely read that the CDC recently advised fully vaccinated individuals to wear face coverings indoors in areas of substantial or high transmission (which is the current status in Lancaster County). As cases of the Delta variant increase in Nebraska, we will continue to closely coordinate with LLCHD and will adapt if needed and necessary should directed health measures change.

Anyone who is unvaccinated remains susceptible to infection, particularly the highly transmissible Delta variant, and is expected to wear a face covering. If you are unable, or unwilling, to protect yourself and others with a vaccine, it is critically important that you utilize other protective measures.

We know that there are many in our community who have family members who are unable to be vaccinated. Instructors who face these circumstances (e.g., with family members too young to be vaccinated) may request that face coverings be worn in their classes.

People may choose to wear a face covering for a variety of reasons, so no one should assume that someone who wears one is unvaccinated. Respect and grace for each other have been essential elements of our successful management of the pandemic thus far. I ask everyone in our community to continue to show goodwill toward others as we continue to face this challenge together.

 At the end of the day, the best thing anyone can do to maximize individual liberty and minimize the risks of Covid is to get vaccinated.   

I try to always remember: "People willing to trade their freedom for temporary security deserve neither and will lose both." --Ben Franklin

Links to Blog Posts for First Class (Monday) of First Amendment

 These are the blog posts we will be discussing this week:

First one on D and I and Free Speech:

https://hoorayproperty.blogspot.com/2021/05/inclusive-leadership-two-hypos-for-1ls.html 

 Now these:

Zones of Tolerance

Church, State and the Constitution 

https://professorduncan.blogspot.com/2011/06/does-constitution-require-separation-of.html

Jefferson's Wall of Separation 

Incorporation of the Establishment Clause

https://professorduncan.blogspot.com/search?q=Single+Ideal 

https://professorduncan.blogspot.com/2008/01/everson-and-neutrality.html 

EC Prior to Everson 

Justice Rutledge in Everson 

 

"New Hampshire Enacts Law To Protect Churches In Future Emergencies"

 This post from the ReligionClause blog is pretty cool:

On Tuesday, New Hampshire Governor Chris Sununu signed HB542, the New Hampshire Religious Liberty Act (full text). The law provides in part:

[D]uring a state of emergency, the state government shall permit a religious organization to continue operating and to engage in religious services to the same or greater extent that other organizations or businesses that provide essential services that are necessary and vital to the health and welfare of the public are permitted to operate.

Under the statute, the state may still require religious organizations to comply with neutral health, safety, or occupancy requirements, but must meet a strict scrutiny test if the requirement imposes a substantial burden on a religious service.

AP reports on the new law, which takes effect in 60 days.

"A Takings Clause Lawsuit Against the CDC Eviction Moratorium"

Does social justice include protecting private property from uncompensated takings?

 Ilya Somin's story at Reason (LINK):

The Centers for Disease Control's enactment of a new, modified version of its eviction moratorium is not the only significant new legal development on this front. Last week, a group of plaintiffs led by the National Apartment Association (a trade association of owners and managers of rental housing) filed a takings lawsuit against the original version of the CDC moratorium. They argue that the moratorium qualifies as a taking requiring "just compensation" under the Takings Clause of the Fifth Amendment. The cover sheet indicates they are seeking an estimated $26 billion in compensation payments.

Prominent takings lawyer Robert Thomas has a helpful summary of the complaint at the Inverse Condemnation blog:

The Complaint alleges a physical invasion taking because it precludes "property owners from excluding [tenants] and leasing the rental homes to rent-paying persons, even as the property owners must continue paying taxes, utility payments, employee salaries, maintenance costs, the cost of capital, and other expenses." Complaint at 10. Alternatively, the property owners allege that the CDC order is an "illegal exaction because the CDC exceeded and contravened its statutory and regulatory authority and as a direct result exacted Plaintiffs' private property and property interests[.]" Id. at 2.

The just compensation sought "includes the amount of rental income Plaintiffs would have received in the absence of the physical occupation and taking or exaction of their property …" Id.

Previous efforts to challenge eviction moratoria on takings grounds have had little success. But, for reasons I summarized here, that may change as a result of the Supreme Court's recent ruling in Cedar Point Nursery v. Hassid:

A key reason why such claims faced bleak prospects is that Supreme Court precedent made it very difficult for property owners to prevail in a takings case if the government imposed a merely "temporary" physical occupation of their land. It was often difficult to tell the difference between a temporary occupation and a permanent one. But the CDC had a strong argument that the eviction moratorium was temporary, because each successive extension of the order included a specific time limit, generally only a few weeks in the future.

Cedar Point changes that. Now, at least a as a general rule, "a physical appropriation is a taking whether it is permanent or temporary." This makes potential takings challenges to the CDC order much stronger. A moratorium on evictions in situations where the property owner would otherwise have a right to remove the tenant pretty clearly imposes at least a temporary physical occupation against the owner's will. And the federal government isn't paying "just compensation" to affected landlords, as the Takings Clause requires.

While this case was filed against the earlier version of the CDC moratorium, it applies just as readily to the new one. The two are very similar. And, of course, the lawsuit against the original version is still valid, given that the plaintiffs are still entitled to seek compensation for losses incurred during the period when it was in effect.

Even after Cedar Point, issue isn't a complete slam dunk. The federal government can still make various arguments to try to avoid liability, such as the claim that the moratorium falls within the "police power" exception to takings liability, due to the fact that it was enacted for the purpose of controlling the spread of disease. But I am doubtful that courts will be willing to extend the police power exception so far, and hope they will not. At the very least, the plaintiffs have a substantial likelihood of success, far greater than before Cedar Point.

Prevailing on the takings claim won't necessarily get the NAA and other plaintiffs the massive $26 billion in compensation they seek. I don't know how they calculated that figure (the complaint gives little indication of their methodology), and it could easily be way off. Compensation will have to be calculated on a case-by-case basis, and may vary widely as between different property owners. Should the courts rule that the moratorium qualifies as a taking, it might take months—or even years—of additional litigation to determine how much compensation is due.

Regardless of the amount of compensation, this may well turn out to be an important case that sets a major precedent applicable to future eviction moratoria, and perhaps other regulations, as well. Anyone interested in takings and property rights issues would be well advised to keep an eye on it.

UNL Policy on Free Speech and Academic Freedom

 

July 21, 2021

To the Faculty, Staff and Students of the University of Nebraska:

Recently there has been a great deal of conversation across our campuses about academic freedom and its importance to our university. Today we issue the following unified statement in defense of freedom of expression for all members of the University of Nebraska community:

The free and open pursuit of ideas is a cherished principle in higher education, and its preservation is vital for any great university. As our policies and practices make clear, the University of Nebraska is strongly committed to academic freedom. We support and defend the liberties our teachers and learners have to freely discuss ideas in and outside of the classroom.

Our central mission is to educate Nebraska’s future leaders, and in preparing students to be thoughtful and engaged citizens, our instructors expose them to any number of concepts and ideas. Issues around race, equity and the fight against racism are an important part of our country’s story and they have an appropriate place in our classrooms. Our policies guard against the introduction of matters that are irrelevant to the subject at hand. We further expect and believe that in discussing ideas, our instructors make their classrooms places of robust and open debate, where all viewpoints are considered and all may express their opinions freely. That commitment to free expression is at the heart of our work as an institution of higher learning.

 

Ted Carter
President, University of Nebraska System

Jeffrey P. Gold, M.D.
Chancellor, University of Nebraska Medical Center

Ronnie D. Green, Ph.D.
Chancellor, University of Nebraska–Lincoln

Doug Kristensen, J.D.
Chancellor, University of Nebraska at Kearney

Joanne Li, Ph.D., C.F.A.
Chancellor, University of Nebraska at Omaha

 

Religion Clause Blog: "7th Circuit En Banc: Ministerial Exception Applies To Hostile Work Environment Claims"

 Here is the post:

In Demkovich v. St. Andrew the Apostle Parish, Calumet City, (7th Cir., July 9, 2021), the U.S. 7th Circuit Court of Appeals, sitting en banc, held by a vote of 7-3 that the ministerial exception doctrine applies to protect religious organizations from  hostile work environment claims alleging minister-on-minister harassment. A 3-judge panel had reach the opposite conclusion. At issue is derogatory and demeaning comments made to the church's gay music director by the church's pastor. The majority opinion, written by Judge Brennan, said in part:

This case concerns what one minister, Reverend Dada, said to another, Demkovich. Adjudicating Demkovich’s allegations of minister-on-minister harassment would not only undercut a religious organization’s constitutionally protected relationship with its ministers, but also cause civil intrusion into, and excessive entanglement with, the religious sphere.

Judge Hamilton filed a dissenting opinion, joined by Judges Rovner and Wood, saying in part: 

[P]laintiff is not asking the court to pass on the substance of the Catholic Church’s religious doctrines or practices. Civil courts have nothing to say about whether the Church should permit same-sex marriage, for example, or whether the Church should have a hierarchical supervisory structure. The Church was free to decide whether to retain plaintiff or fire him. But plaintiff’s hostile work environment claims allege conduct that constituted abuse under neutral, generally applicable standards that would be enforceable on behalf of a non-ministerial employee. That conduct is, by definition, not necessary to control or supervise any employee.

Bloomberg Law reports on the decision.

 

I think the 7th Circuit got this issue right--under the First Amendment, government has no business regulating internal matters of church ministry.

First Amendment Protects All Cake Artists From Compelled Artistic Expression

 

                                                     From Jack Phillips to This Guy

The Babylon Bee is the best!