From Religion Clause Blog

High Schooler Sues To Challenge Art Project Limits

As we study free speech of religious students in public schools, real life imitates the classroom. Here is an excerpt:

"In Madison, Wisconsin, a Tomah High School senior (identified as A.P.) last Friday filed a federal lawsuit challenging a school policy that prohibits art class projects from depicting "violence, blood, sexual connotations, [or] religious beliefs." In an art class assignment involving drawing of a landscape, A.P. included a cross and the words "John 3:16 A sign of peace." Teacher Julie Millin, asked him to remove the Bible reference because other students were making remarks about it. When A.P. refused, she gave him a zero on the project, showing him the class policy. A.P. responded by tearing up the policy statement in front of the teacher. She ejected him from class and he later received two detentions for tearing up the policy. In a later incident, A.P.'s metals arts teacher rejected his idea to build a chain-mail cross because it was religious.

The complaint in A.P. v. Tomah Area School District, (WD WI, filed 3/28/2008), alleges that the school policy and its enforcement against A.P. violates A.P.'s First and 14th Amendment rights. It says that other artwork with religious themes are displayed throughout the school and argues that "per se censorship of religious speech in assignments does not represent a legitimate pedagogical interest." A release yesterday by the Alliance Defense Fund contains links to copies of A.P.' drawing and to drawings of demonic images created by other students in the class. Yesterday's Racine (WI) Journal Times reports on the case."


The complaint filed in the U.S. District Court for the Western District of Wisconsin in A.P. v. Tomah Area School District is available at www.telladf.org/UserDocs/APComplaint.pdf.
A copy of the drawing created by the student is available at www.telladf.org/UserDocs/APDrawing.pdf. Copies of artwork depicting demonic images created by other students in the class are available at www.telladf.org/UserDocs/DemonicDrawing1.pdf and www.telladf.org/UserDocs/DemonicDrawing2.pdf.

Here is the ADF Press Release announcing a favorable settlement in the case"

Wisconsin student wins settlement in “JOHN 3:16” drawing case

Freedom of religious expression no longer banned under school grading policy
Tuesday, May 20, 2008

MADISON, Wis. — A settlement reached between Alliance Defense Fund attorneys and the Tomah Area School District means the district will respect students’ constitutional right to religious expression in their artwork.

“Christian students shouldn’t be penalized for expressing their beliefs, so we’re pleased that this settlement will make sure that no longer happens,” said ADF Senior Legal Counsel David Cortman.  “It was clearly unconstitutional for the school to enforce a policy in such a way as to bar religious expression by a Christian student while allowing other types of religious expression by other students.  No school policy can require a student to surrender his First Amendment rights.”

On March 28, ADF attorneys filed a federal lawsuit after a teacher told a student at Tomah High School to either remove or cover up a Scripture reference depicted in a piece of artwork, citing a grading policy that banned depictions of “blood, violence, sexual connotations, [or] religious beliefs.”  Students who portrayed demon-like creatures in their art, however, were not censored.

On April 15, ADF attorneys filed a motion for preliminary injunction against the district.  The school district then decided to pursue settlement of the case.

Under the terms of the settlement, Tomah Area School District officials have removed the ban on religious expression in class assignments.  The student’s artwork, which initially received a “zero,” has now been graded.  Additionally, Tomah High School has removed from school records any and all references to the disciplinary actions taken against the student.

A copy of the stipulated dismissal filed in the U.S. District Court for the Western District of Wisconsin in A.P. v. Tomah Area School District is available here.

Catholic Hospitals and Abortion; Adoption Agencies and SSM

David French, Why Christians Can’t Compromise on Conscience

 

Link 

 

Money quote:

It goes something like this: Dear Christians, thank you for feeding, housing, and caring for the poor, but unless you do it in the manner we prefer, advancing the worldview we prefer — even to the point of adopting the personnel policies we demand — we will use all the power of law and public shame to bring you into compliance. We’ll pass laws that violate your conscience. We’ll call you bigots or misogynists when you resist. And all the while, the fact that you actually do serve and sustain (physically and spiritually) millions of Americans will be lost and ignored.
This is how activists justify tossing from campus Christian groups that do an immense of amount of good works simply because they don’t consent to being led by a lesbian who doesn’t believe in their statement of faith. This is how legislators pass laws that will reduce the number of adoption agencies rather than allow Catholic or other Christian agencies to follow their most basic principles when placing children in loving homes. This is how organizations such as the ACLU launch litigation campaigns that could cause hospitals to close, narrowing the health-care options for poor and marginalized Americans.
And in response to each event, as Christians leave campus or adoption agencies close their doors, many of these same progressives will be puzzled. Why close? Why leave? Just change your policies. Can’t you provide Catholic care and contraception — and blame the state for making you do it?
But this fundamentally misunderstands the nature of serious faith.

Bob Jones case: A Roadmap for Religious Persecution

Race is special under the US Constitution, so on its facts Bob Jones is understandable. But consider how tax status can be used to persecute religious institutions in the world we live in today.

Bob Jones University is a Christian college that had a policy forbidding students to engage in interracial.marriage & dating.

The IRS decided to deny the school's tax-exempt status as an educational institution as a result of this policy.

How much of a burden is this on a non-profit educational institution?

Issue: Does this decision violate the Free Exercise Clause?

This is a pre-Smith case, so Bob Jones clearly had a free exercise claim, but the Court held that the government's compelling interest in eradicating racial discrimination in education justified the IRS's decision to deny tax-exempt status?

What happens now if the IRS decides to deny tax-exempt status to churches and private schools that have policies based-upon the Biblical view of marriage and sexuality?

Notice RFRA would apply to a federal policy burdening religious exercise.

Religious Liberty vs. The Sexual Revolution

Prof. Doug Laycock, who supports both same-sex marriage and religious liberty, makes a very thoughtful point:

One of the ironies of the culture wars is that religious minorities and
gays and lesbians make essentially parallel demands on the larger society.
I cannot fundamentally change who I am, they each say. You cannot
interfere with those things constitutive of my identity; on the most
fundamental things, you must let me live my life according to my own
values. We can honor both sides' version of that claim if we will try.

And in all but a tiny fraction of these cases, the issue is not whether
any other individual can obtain contraception, or whether a same-sex
couple can have a wedding with the full panoply of catering, clothes, photographs,
flowers, and all the rest. All those things are readily available
in the market place in most of the country. The issue is whether the religious
conscientious objector must be the one who provides these things.

What are your thoughts?

Trinity Lutheran

Remember Prof. McConnell's statement about religious liberty in the Welfare State: link

Final Exam

Here is what I have decided about the final exam:

Grading: Your grade for the course will be based 100% on your score on the Final Exam. The Final Exam will consist of one substantial essay question and two shorter essay questions.The Final will be a closed book exam. Most of the essay questions will be ones you have encountered during the semester, whether in the blog, the assigned readings, or our class discussion.

Text of First Amendment

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Masterpiece Cakeshop--Viewpoint or Content Mandate

In Masterpiece Cakeshop, was the mandated cake artistry content-neutral, content-based or viewpoint-based? Discuss

Public and Nonpublic Fora: Brief Introduction

 The Categories of Public and Nonpublic Fora

The Supreme Court has classified government property opened to private expression as creating one of three categories of fora: such government property will be classified as either a traditional public forum, a designated public forum, or a nonpublic forum. A traditional public forum is a place, such as a park or a public street, that has “immemorially been held in trust for the use of the public and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”  

A second category of forum is the designated or limited public forum. Such a public forum is created when Government purposefully opens its property for public expression by part or all of the public.

Finally, a nonpublic forum exists when Government opens its property for certain communicative purposes, but does not intend to create a designated public forum.

In the case of a limited public forum, government may not exclude “a speaker who falls within the class to which a designated public forum is made generally available,” nor “may it discriminate against speech on the basis of viewpoint.” 


In the case of a nonpublic forum, the government may restrict access “as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials oppose the speakers view.” 

Significantly, although the government may exclude speech from even a limited public forum on the basis of subject matter, viewpoint discrimination is prohibited in both public and nonpublic fora.

Notice in Rosenberger the Court referred to the SAF Funding Policy as "a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable." 

What is a metaphysical forum? How can a pool of money be a forum for speech? Does it turn on the purpose of the funding? Why did U VA create a pool of funds to pay the printing costs of newspapers and magazines published by student groups?

Rosenberger Oral Arg Link

Link

Town of Greece Oral Argument

My plan for Monday July 16 is to spend the first 15 minutes of class discussing Summum and Walker.

Then we will listen in class to the Town of Greece oral argument before SCOTUS.

 Here is the link to the oral argument in case: LINK

The blog posts on Chambers and Town of Greece give you a good idea of the doctrine of those cases.

Walker v. Tex. Div. Sons of Confederate Veterans (Link Case)

Texas allows nonprofit entities to sponsor specialty license plates. Apparently, the State has approved over 350 specialty plates designed by private organizations including ones bearing the names of fraternities and sororities, Universities, the Masons, the Knights of Columbus, and slogans such as “I’d Rather Be Golfing.” The private entities design the specialty plate, and pay rather large fees into the state treasury. As Justice Alito’s dissent puts it: “[T]he State of Texas has converted the remaining space on its specialty plates into little mobile bulletin boards on which motorists can display their own messages.” P. 7

When the Sons of Confederate Veterans proposed a specialty plate featuring a tiny Confederate battle flag, the state rejected the design because many members of the general public found the design offensive.

So is this a case of government speech like Summum or private speech rejected from a forum based upon its viewpoint?

Is this case more like the park in Summum or more like the Columbine wall from our hypothetical?

If you see a driver with a Texas license plate that says "I'd Rather be golfing" or "Join the Masons" do you view that message as that of the State of Texas, or of  the car owner who purchased a specialty license plate? If you see a Notre Dame Football specialty plate do you believe the State of Texas has a new official favorite football program? Or just that some Notre Dame fans, who happen to live and drive in Texas, are flying their colors via the specialty license plate message?

So, who got it right--Justice Breyer and the majority (government speech thus no free speech claim) or Justice Alito and the dissent (private speech rejected on the basis of its "offensive" viewpoint)? 

Masterpiece Cakeshop--Thoughts and Questions

Although the Court does not decide the Free Speech issue in this case, notice on page 2 it buries a bone in dictum:

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

This is a strong suggestion that custom made cake artistry is indeed artistic expression protected by the Free Speech Clause. Add in the strong compelled speech opinions by Thomas and Kennedy in NIFLA and you can predict how the next cake artist cakes will be decided under the "no compelled speech" doctrine.

Notice that the Court does hold that the Colorado Civil Rights Commission did violate Phillips' rights under the Free Exercise Clause of the First Amendment because the Commission violated the "obligation of religious neutrality." p. 2-3

How did the Commission violate its obligation of neutrality under the Free Exercise Clause?

Let's look at p. 13-17

1. Bigoted anti-religious statements. [See 2 Tim: 3:12  ("Indeed, all who desire to live a godly life in Christ Jesus will be persecuted.")]

2. Differential treatment of Phillips and other bakers who refused to bake cakes with religious messages they found offensive. p. 14-15

The Commission exempted bakers who were offended by anti-gay religious messages on cakes, but did not exempt bakers like Phillips who were offended by cakes celebrating SSM.

Here is a key quotation from p. 16:

A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.

Again, although this comes in to explain why the Commission violated Phillips' rights under the Free Exercise Clause, the same reasoning applies to the Free Speech Clause and the Commission's viewpoint-based order compelling Phillips to create wedding cakes celebrating SSM.

Do you see this last point?

So, although the opinion is narrow in the sense that it focused on the particular facts of Phillips' case, much of the reasoning applies in other cases involving wedding vendors who object to taking part in SSM.

Masterpiece Cakeshop: Cake Artistry--Food or Expression?

One of the amicus briefs opposing Jack Phillips in this case, one written by First Amendment scholars I admire, candidly admits that the government may not compel persons who create speech or artistic expression,

such as painters, photographers, videographers, graphic designers, printers and singers, “to record, celebrate. or promote events they disapprove of, including same-sex weddings.”

But somehow this brief concludes that free speech protection does not extend to bakers such as Jack Phillips. Cake is food--not speech--they argue.

Surely, a pizzeria can’t claim its pizzas or breadsticks involve first amendment expression.

A McDonald’s cheeseburger is just a cheeseburger—it may not even be that.

A business that rents chairs and tables and tablecloths is not an expressive business.

So much depends on the facts.

In the oral arguments in this case, Solicitor General Francisco, argued that Jack Phillip’s custom cakes “are essentially synonymous with a traditional sculpture except for the medium used” (cake dough rather than clay or marble).

Phillips also paints using cake as his canvas.

The Solicitor General suggested that a workable test with respect to a service that is part art and part utilitarian is to ask whether it is predominantly art or predominantly utilitarian.”

So, suppose a same-sex couple asked Jack Phillips to do two things:

1. sell them some croissants to feed guests at the pre-reception lunch; and

2. to create a custom-made wedding cake to serve as the centerpiece of the iconic cake cutting ceremony celebrating their wedding and marriage.

Under the predominantly speech vs. utilitarian test, how would these two cases come out?