Content Neutrality

In Carey v. Brown (see casebook p. 1331), an ordinance prohibited residential picketing but exempted "the peaceful picketing of a place of employment involved in a labor dispute." Is this ordinance content neutral?

How about the Westminster ordinance which prohibits focused picketing outside "religious premises" at the time of "a scheduled religious activity." Is that content neutral?

Here is how the Court describes its rule([See Perry Education Association v. Perry Local Educators’ Ass’n, 460 U. S. 37 (1983) quoted in part at p. 1332 of casebook):

“In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. (P. 209) Carey v. Brown, 447 U.S. 455, 461 (1980). The state may also enforce regulations of the time, place and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. . . .”

See also Krishna case infra.

New Muslim Police Officer Case

From the Volokh Blog:

Court Rejects Muslim Police Officer’s Demand for Accommodation of His Religious Practice of Wearing a Full Beard

Eugene Volokh • May 11, 2010 10:23 am

The case is Wallace v. City of Philadelphia (E.D. Pa. Apr. 26). The court’s reasoning:
1. Because the police department didn’t allow anyone to wear a full beard, it had no obligation under the Free Exercise Clause to carve out an exemption for religious objectors.
2. Under FOP Newark Lodge No. 12 v. City of Newark (3d Cir. 1999) (Alito, J.), the city does generally have an obligation to provide a religious exemption when it provides the same exemption for secular reasons, such as for people who have medical problems that make shaving inadvisable. But because Philadelphia’s medical exemption applied only to beards that were no longer than 1/4 inch, Wallace was entitled only to to this exemption (which he concluded was inadequate for his religious reasons) and nothing more.
3. The city doesn’t have to accommodate the religious objection under Title VII’s “reasonable accommodation” test, either, because (quoting Webb v. City of Philadelphia (3d Cir. 2009)), “what is at stake is the Philadelphia Police Department’s perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. If not for the strict enforcement of [the uniform rules], the essential values of impartiality, religious neutrality, uniformity and the subordination of personal preference would be severely damaged to the detriment of the police department.”
4. My favorite quote: A police inspector testified that, when she examined Wallace, she “said to herself ‘that you could hide like a dwarf in the beard or something.’”

Another Heckler's Veto Case

Here is a link to an NBC story and video.

Assignments and Handouts

For next Thursday's class, be prepared for the first two Fr Ex assignments:

1. Linder Introduction (Link); Reynolds case (Link)


2. Casebook p. 1702-1708; Goldman case (Link); Lyng case (Link)

Also, the Handouts for Friday's class are now available in the kiosk outside the South Faculty offices.

Greetings from Panem, The Capitol

I am in The Capitol for a talk at Catholic Law School. This morning, I visited the Lincoln Memorial and read the Gettysburg Address on the Walls of the Memorial. Here is what is carved there:

"Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."


Obviously, I thought of the Newdow case and the "Wall of Separation" and Con Law II as I observed the Memorials.

See y'all next week!

Thomas and Partial Incorporation in Van Orden

Here is an almost complete excerpt from Justice Thomas' concurring opinion in Van orden. Notice how he handles the issue of incorporation and partial incorporation:

"This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause. I have previously suggested that the Clause's text and history “resis[t] incorporation” against the States. [citations omitted] If the Establishment Clause does not restrain the States, then it has no application here, where only state action is at issue.

Even if the Clause is incorporated, or if the Free Exercise Clause limits the power of States to establish religions, see Cutter v. Wilkinson, 544 U.S. 709, 728, n. 3, 125 S.Ct. 2113, 2118, n. 3, 161 L.Ed.2d 1020 (2005) (THOMAS, J., concurring), our task would be far simpler if we returned to the original meaning of the word “establishment” than it is under the various approaches this Court now uses. The Framers understood an establishment “necessarily [to] involve actual legal coercion.” Newdow, supra, at 52, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment); Lee v. Weisman, 505 U.S. 577, 640, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SCALIA, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty ”). “In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers.” Cutter, supra, at 729, 125 S.Ct., at 2126 (THOMAS, J., concurring). And “government practices that have nothing to do with creating or maintaining ... coercive state establishments” simply do not “implicate the possible liberty interest of being *694 free from coercive state establishments.” Newdow, supra, at 53, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment).

There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.

Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the Court's current approach to such challenges. This Court's precedent elevates the trivial to the proverbial “federal case,” by making benign signs and postings subject to challenge. Yet even as it does so, the Court's precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance. Even when the Court's cases recognize that such symbols have religious meaning, they adopt an unhappy compromise that fails fully to account for either the adherent's or the nonadherent's beliefs, and provides no principled way to choose between them. Even worse, the incoherence of the Court's decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application. All told, this Court's jurisprudence leaves courts, governments, and believers and nonbelievers alike confused-an observation that is hardly new. See Newdow, supra, at 45, n. 1, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment) (collecting cases).

First, this Court's precedent permits even the slightest public recognition of religion to constitute an establishment of religion. For example, individuals frequenting a county courthouse have successfully challenged as an Establishment Clause violation a sign at the courthouse alerting the public that the building was closed for Good Friday and containing a 4-inch-high crucifix. Granzeier v. Middleton, 955 F.Supp. 741, 743, and n. 2, 746-747 (E.D.Ky.1997), aff'd on other grounds, 173 F.3d 568, 576 (C.A.6 1999). Similarly, a park ranger has claimed that a cross erected to honor World War I veterans on a rock in the Mojave Desert Preserve violated the Establishment Clause, and won. See Buono v. Norton, 212 F.Supp.2d 1202, 1204-1205, 1215-1217 (C.D.Cal.2002). If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge. Still other suits have charged that city seals containing religious symbols violate the Establishment Clause. See, e.g., Robinson v. Edmond, 68 F.3d 1226 (C.A.10 1995); Murray v. Austin, 947 F.2d 147 (C.A.5 1991); Friedman v. Board of Cty. Comm'rs of Bernalillo Cty., 781 F.2d 777 (C.A.10 1985) (en banc). In every instance, the litigants are mere “[p]assersby ... free to ignore [such symbols or signs], or even to turn their backs, just as they are free to do when they disagree with any other form of government speech.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 664, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part).

Second, in a seeming attempt to balance out its willingness to consider almost any acknowledgment of religion an establishment, in other cases Members of this Court have concluded that the term or symbol at issue has no religious meaning by virtue of its ubiquity or rote ceremonial invocation. See, e.g., id., at 630-631, 109 S.Ct. 3086 (O'CONNOR, J., concurring in part and concurring in judgment); Lynch v. Donnelly, 465 U.S. 668, 716-717, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (Brennan, J., dissenting). But words such as “God” have religious significance. For example, just last Term this Court had before it a challenge to the recitation of the Pledge of Allegiance, which includes the *696 phrase “one Nation under God.” The declaration that our country is “ ‘one Nation under God’ ” necessarily “entail[s] an affirmation that God exists.” Newdow, 542 U.S., at 48, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment). This phrase is thus anathema to those who reject God's existence and a validation of His existence to those who accept it. Telling either nonbelievers or believers that the words “under**2867 God” have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like “God” are not vulgarities for which the shock value diminishes with each successive utterance.

Even when this Court's precedents recognize the religious meaning of symbols or words, that recognition fails to respect fully religious belief or disbelief. This Court looks for the meaning to an observer of indeterminate religious affiliation who knows all the facts and circumstances surrounding a challenged display. See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O'CONNOR, J., concurring in part and concurring in judgment) (presuming that a reasonable observer is “aware of the history and context of the community and forum in which the religious display appears”). In looking to the view of this unusually informed observer, this Court inquires whether the sign or display “sends the ancillary message to ... 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.’ ” Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-310, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (quoting Lynch, supra, at 688, 104 S.Ct. 1355 (O'CONNOR, J., concurring)).

This analysis is not fully satisfying to either nonadherents or adherents. For the nonadherent, who may well be more sensitive than the hypothetical “reasonable observer,” or who may not know all the facts, this test fails to capture completely the honest and deeply felt offense he takes from the government conduct. For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith. The Court's foray into religious meaning either gives insufficient weight to the views of nonadherents and adherents alike, or it provides no principled way to choose between those views. In sum, this Court's effort to assess religious meaning is fraught with futility.

Finally, the very “flexibility” of this Court's Establishment Clause precedent leaves it incapable of consistent application. See Edwards v. Aguillard, 482 U.S. 578, 640, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (SCALIA, J., dissenting) (criticizing the Lemon test's “flexibility” as “the absence of any principled rationale” (internal quotation marks omitted)). The inconsistency between the decisions the Court reaches today in this case and in McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729, 2005 WL 1498988 (2005), only compounds the confusion.

The unintelligibility of this Court's precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. See, e.g., Harris v. Zion, 927 F.2d 1401, 1425 (C.A.7 1991) (Easterbrook, J., dissenting) (“Line drawing in this area will be erratic and heavily influenced by the personal views of the judges”); post, at 2869 (BREYER, J., concurring in judgment) (“I see no test-related substitute for the exercise of legal judgment”). The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.

Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act **2868 as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court correctly*698 rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order."



Are you convinced by his reasoning? Or do you disagree? What are your thoughts?

University of Alabama Censors Pro-Life Student Group

Gotta love I-Phones sometimes.

Here is a link with a video of viewpoint censorship in action!

UPDATE

ADF press release:

A pro-life student group’s display will return to a hallway at the University of Alabama Thursday. The university apologized Monday to Bama Students for Life, represented by attorneys with Alliance Defending Freedom, for an official’s decision to remove the display on Feb. 6 because some people said they found it “offensive.”

The official removed the display from its place in the Ferguson Student Center without any notification to the group. After Bama Students for Life, with the help of Alliance Defending Freedom, registered a formal complaint about the incident last week, the center’s director apologized for the display’s removal and said he would allow the group to put it back up.

“Censorship is inconsistent with ‘the marketplace of ideas’ that a public university is supposed to be,” said Legal Counsel Matt Sharp. “We commend the university for its quick response to Bama Students for Life’s free speech concerns.”

The display, which featured several abortion-related facts, pictures of women who died as a result of having an abortion, and two small pictures of aborted babies, was among numerous other student group displays in a hallway of the Ferguson Student Center. The president of Bama Students for Life captured the center’s event coordinator on video claiming that university policy allows her to remove displays that have “offensive or graphic material”; however, the university’s policy pertaining to display cases mentions nothing about offensive or graphic content.

By the Rivers of Babylon

Below is a link to my SSRN piece (a short essay) entitled "By the Waters of Babylon: Christian Libertarianism in the Age of Obama." My basic idea is that if we find ourselves exiles in Babylon (Secular America) we ought to be able to agree that a small Babylonian government is better than a large Babylon government (i.e. in Babylon, Christians should be small government libertarians). Here is the link (which allows you to download the article free of charge):

        http://ssrn.com/abstract=2010131

A shorter version of this paper will be published soon in The Christian Lawyer.

I am not assigning this piece, but you may find it interesting. My basic premise is that the best way to protect religious liberty, in a society that seems not to value religious liberty, is to protect liberty generally. In other words, if liberty is maximized for everyone, religious liberty will be maximized as well. Liberty for all is liberty for each one.

Town of Greece Case--SCOTUS Oral Arguments

From Religion Clause blog:

 

Town of Greece Case Argued Before Supreme Court

The U.S. Supreme Court heard oral arguments today in Town of Greece v. Galloway.  At issue is the constitutionality of opening city council meetings with sectarian prayers. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the oral arguments.  ABA Preview has a detailed analysis of the case.

Here is a link to Marsh v. Chambers, the existing landmark case concerning legislative prayer.

The opinion of the Second Circuit in  Town of Greece  is here.

A Right to Be Free From Religion

A few years ago, a student asked me a great question--why isn't there a right under the EC to be free from religion? The idea is that any religious expression in the public square is a deprivation of the citizens right to be free from religion.

What do the rest of you think about that?

We will talk about this again soon, but here is an excerpt of Justice Scalia's dissent in McCreary County (one of the Ten Commandment cases) in which he addresses this issue and compares the USA to France (link).

If nonreligious people should have a right to be free from religion, should religious people have a right to be free from nonreligion? How would we construct a public square that respected both of these calls for triumphalism? What would a pluralistic public square, one seeking to reflect the cultural and religious diversity of the local community, look like?

Today's WSJ on The Little Sisters of the Poor

The New Year's Eve emergency injunction protecting the Little Sisters of the Poor from ObamaCare's birth-control mandate was unusual enough. The Supreme Court rarely grants such relief, and the order was issued by liberal Justice Sonia Sotomayor. But the permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still—and a rebuke to the Obama Administration's bullying conception of religious liberty.

The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.

The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.

The High Court's order bars the Administration from imposing fines on any nonprofit that declares a religious identity and objects to the mandate. It doesn't go to the merits or relate to the separate contraceptive mandate cases that the Court will hear in March. Yet the fact that such an extraordinary intervention was necessary speaks volumes about the Administration's ideological intolerance.

Strong words. I am not sure I would put it this way, but I am sure religious ministries such as the Little Sisters feel crushed by the power of Big Government in these contraceptive mandate cases.

RLUIPA Protects Religious Liberty in Prisons

Here are two recent posts from ReligionClause blog:

One

10th Circuit Rules For Native American Inmate In Cogent Review Of RLUIPA's Requirements

In a highly articulate 31-page opinion by Judge Gorsuch in Yellowbear v. Lampert, (10th Cir., Jan. 23, 2014), the U.S. 10th Circuit Court of Appeals yesterday reviewed each element of a RLUIPA prisoner's rights claim and reversed the trial court's summary judgment against a Native American inmate. Here is the court's description of the case:

Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs.... 

That takes us to the nub of our case. Mr. Yellowbear, an enrolled member of the Northern Arapaho Tribe, seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison has refused. The prison’s sweat lodge is located in the general prison yard and Mr. Yellowbear is housed in a special protective unit (not because of any disciplinary infraction he has committed, but because of threats against him). Prison officials insist that the cost of providing the necessary security to take Mr. Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Mr. Yellowbear disagrees and seeks relief under RLUIPA. For its part, the district court discerned no statutory violation and entered summary judgment against Mr. Yellowbear. Mr. Yellowbear asks us to undo that judgment so that his case might proceed to trial.

At the end of the day, we find that’s exactly the relief we must provide.

AP reports on the decision. 

Two

Muslims Want Florida Prisons To Offer Halal Meals

Now that the Justice Department has won a preliminary injunction from a federal district court ordering Florida prisons to make kosher meals available by July 1 to all prisoners with a sincere religious basis for keeping kosher (see prior posting), Muslim groups are asking for Halal meals as well. In a press release yesterday, CAIR-Florida said:

We welcome the decision [on kosher food] as an important step in protecting religious rights of incarcerated individuals. It is only fair and equitable that if Jewish inmates receive kosher food, as they should, that Muslim inmates have access to halal meals. Muslim businesses in our state stand ready to offer the advice and services needed to provide halal meals to inmates.

According to the Huffington Post, Halal prison meals would cost only about one-third of the cost of kosher meals.

Three

Here is a little more on the cost of providing Kosher meals:

States Concerned Over Costs and Demand For Prison Kosher Food

Today's New York Times carries a front page story titled You Don’t Have to Be Jewish to Love a Kosher Prison Meal, focusing on the added cost to prison systems of serving kosher food ($7 per day vs. $1.54 in Florida) and the feigning of Jewish religious beliefs by some inmates in order to be placed on kosher diets:

Some states, like New York, do nothing to try to discern who is feigning Jewishness. In California, inmates talk with a rabbi who will gauge, very generally, a prisoner’s actual interest. 

But some Jewish groups in Florida are pushing for greater control, which may pose a difficult legal hurdle.

Leviathan State vs. Little Sisters of the Poor

Weekend advice from Charles Krauthammer: "when there's a suit between the leviathan state of Obama against the Little Sisters of the Poor, take the side of the Little Sisters of the Poor. You can't lose."

SCOTUS agrees, at least for now--from today's Washington Post:

The Supreme Court said Friday that a group of Colorado nuns does not have to comply with the Affordable Care Act’s requirement that employers offer insurance plans that cover contraceptives while the nuns pursue a legal challenge of that portion of the law. In a short and unsigned order, the court said the Little Sisters of the Poor must simply inform the Obama administration that they are a religious organization that should be exempt from the requirement.

Foot Baths

Let's start with a discussion of the NYC footbaths case.

How should the First Amendment apply there?

Does it violate the EC for government to try to accommodate religious liberty?

Heckler's Veto in the News

Lat's start today's class with a discussion of the "Wall of Separation" in the news:


From January 16, 2014, Washington Times:

The Wisconsin public university system removed all its copies of the Gideon Bible from the campus conference center after the Freedom From Religion Foundation complained of a constitutional violation.
Administrators with the University of Wisconsin-Extension said they received the complaint in November and after weeks of consideration and discussion, decided to remove from the Lowell Center all 137 copies of the bible — a normal fixture at guest rooms and in hotels around the nation.
“Permitting members of outside religious groups the privilege of placing their religious literature in public university guest rooms constitutes state endorsement and advancement of these Christian publications,” said FFRF attorney Patrick Elliot, in a letter of complaint, UPI reported. And on the group’s website, he wrote that “while private hotels may choose to put any type of literature they want in their guest rooms, state-run colleges have a constitutional obligation to remain neutral toward religion.”
In response, a UW-Extension spokesman said in a letter: “We reviewed the concern raised about the placement of Bibles in our guest rooms and decided to remove them. We want to make sure all guests are comfortable in our lodging.”

Read more: http://www.washingtontimes.com/news/2014/jan/16/wisconsin-university-system-bans-gideons-bibles-ca/#ixzz2quAfLDI2

These Bibles placed in University-owned hotel rooms were not hurting anyone or depriving anyone of any liberty interest. If you don't want to read the Gideon Bible, don't read it. Leave it in the nightstand drawer and read whatever you want to  read. But why demand a heckler's veto depriving other hotel guests of access to the Bibles?

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

From ReligionClause Blog:

 

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

The U.S. Supreme Court this morning heard oral arguments in McCullen v. Coakley, a case challenging on free speech grounds a Massachusetts law creating a 35-foot buffer zone around abortion clinics to shield women entering the clinics from abortion opponents.  The law allows only clinic employees acting within the scope of their employment to be on sidewalks within the buffer zone. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the arguments, as well as well as a case page with links to all the briefs, the lower court opinion and other information.

Con Law II Class Spring Semester--First Reading

Con Law II students Spring Semester 2014. 

 I would like you to read my recent article on the Establishment Clause and free speech interests. It should make for interesting reading over the long winter break.

We will discuss this in class on our first session.

This is an article critiquing the Supreme Court's jurisprudence concerning passive religious displays in the public square, and the true source of the Court's Wall of Separation Between Church and State. Hint: It is not Jefferson, but rather an organization that Justice Hugo Black once belonged to!

My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available (free download) at SSRN

What Do the American People Think About religion in the Public Square?

From the Religion Clause blog:

Survey Shows Support For Religion In the Public Arena

Ellison Research recently released a poll of 1,007 American adults on church-state issues. Here is an excerpt from the release summarizing the results of the poll which asked respondents whether various practices should be legal:

• 90% feel the law should support religious groups renting public property ... for meetings if non-religious groups are allowed to do so.
• 89% say it should be legal for a public school teacher to permit a “moment of silence” for prayer or contemplation for all students during class time.
• 88% believe it should be legal for public school teachers to wear religious symbols ... during class time.
• 87% say voluntary student-led prayers at public school events ... should be legal.
• 83% believe the display of a nativity scene on city property ... should be legal.
• 79% say it should be legal to display a copy of the Ten Commandments inside a court building.
  
  Out of nine such scenarios presented to people in the study, only three do not show this level of unified thought:
• 60% believe the display of a scene honoring Islam on city property, such as a city hall, during Ramadan ... should be legal (even though 83% thought a nativity display should be legal).
• 52% believe it should be legal for a religious club in a high school or university to determine for itself who can be in their membership, even if certain types of people are excluded.
• 33% say it should be legal for a landlord to refuse to rent an apartment to a homosexual couple.

Baptist Press  discussed the poll results more extensively.

My Most Recent Article

This is not an assignment. Nor is it about Con Law I.
This is just something you might find interesting. It is a Con Law II article.

I have recently uploaded on SSRN my most recent article, entitled "Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto."  I mentioned some of these ideas at a Federalist Society event recently, and some of you have asked me about it.

This is an article critiquing the Supreme Court's jurisprudence concerning passive religious displays in the public square, and the true source of the Court's "Wall of Separation Between Church and State." Hint: It is not Jefferson, but rather an organization that Justice Hugo Black once belonged to!

You can download a free copy here: Duncan's Article on Just Another Brick in the Wall.

 

Last Assignments: December 4 & 5

We only have two classes left (since we still have one class that we must cancel). So Wednesday  December 4 and Thursday December 5 are all we have left. So Here is what we will try to read:

Wednesday December 4: 23 Casebook p. 691-730
Thursday December 5: 24 Casebook p. 730-744 plus casebook p. 782-813

I will skip around a bit, and focus on the most important cases in these last two assignments.

Friday December 6 is cancelled (it is our 7th required cancellation). But I will show up for an optional Q & A session.

As Tom Tofurkey always says: Have a great Thanksgiving break. And spend some time with family and loved ones.