Thursday, May 3, 2012

National Day of Prayer/ National Day of Reason

423px-Holbein-erasmusThis year, as President Obama issues the proclamation of a National Day of Prayer for May 3, it includes an invitation to "all citizens of our Nation, as their own faith directs them, to join me in giving thanks for the many blessings we enjoy, and I call upon individuals of all faiths to pray for guidance, grace, and protection for our great Nation as we address the challenges of our time." 

Obama's proclamation is pursuant to 36 U.S.C. § 119 passed by Congress in 1988 and signed by Ronald Regan, declaring the First Thursday in May as the "National Day of Prayer."

While a district judge had enjoined the National Day of Prayer in 2010 as violating the Establishment Clause, the Seventh Circuit later ruled that the Freedom from Religion Foundation lacked standing to bring a claim for relief.  Importantly, the Seventh Circuit stated that even if "this means that no one has standing, that does not change the outcome."

However, May 3 is now also the "National Day of Reason," supported by the American Humanist Association. Congressperson Pete Stark of California has made a statement on the floor of the House of Representatives recognizing the National Day of Reason as celebrating "the application of reason and the positive impact it has had on humanity. It is also an opportunity to reaffirm the Constitutional separation of religion and government."  There is also a petition seeking President Obama's recognition of the National Day of Reason:

"We therefore respectfully ask that you issue a proclamation recognizing the National Day of Reason on May 3rd, 2012 in order to promote the importance of reason and to give secular Americans the same sort of governmental recognition that religious Americans receive on the National Day of Prayer. Regardless of our religious beliefs or lack thereof, we are all Americans."

[image: Erasmus, renowned humanist and theologian, Portrait by Hans Holbein, circa 1523, via]

May 3, 2012 in Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, History, Religion | Permalink | Comments (0) | TrackBack (0)

Saturday, April 28, 2012

Saturday Evening Review: The Missing Dissenting Opinion in Hosanna-Tabor by Professor Leslie Griffin

As a rule, there is something unsatisfying about a constitutional law opinion from the United States Supreme Court without a well-reasoned and scholarly dissent. 

The Court's opinion earlier this year in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is no exception to that rule, despite a  short concurring opinion by Justice Thomas and the much longer concurring opinion by Justice Alito in which Justice Kagan joined.   The Court in Hosanna-Tabor recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws, including the ADA.

LeslieGriffinProfessor Leslie Griffin supplies the necessary countervailing arguments in her forthcoming article The Sins of Hosanna-Tabor, available on ssrn.  Professor Griffin (pictured left) who co-authored the Brief of Amici Curiae Law and Religion Professors in Support of Respondents and who appeared at the AALS Conference panel discussing the case was well-situated to provide a quick and thorough analysis, with excellent research that is mostly absent from the Court's opinions. 

Griffin's critique of the case is insightful and pointed, discussing the factual context and reorienting it as a retaliation case, providing some useful historical perspectives, and seeking to reconcile the 1990 case of Employment Division v. Smith.  As Griffin argues, after Hosanna-Tabor, "Individual religious believers are subject to the rule of Smith, while institutions are not. Institutional religious freedom allows the firing of ministerial employees for any reasons, even non-religious ones."  This does seem incoherent, although as Griffin notes, the "rule always favors employers."  

The broad insulation of religious employers from anti-discrimination laws for anyone who is deemed a minister  is the import of Hosanna-Tabor.  While the Court declined to decide exactly who is a minister, the implication seems to be that this determination must rest on the sincere belief of the employer, lest there be Establishment Clause issues.  The Court also declined to express a view "on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.”   Griffin uses her in depth knowledge of the area to explore the implications of this opening.

Griffin's article is worth reading for anyone teaching or writing about Hosanna-Tabor and should certainly be excerpted in Casebooks.   It's an important dissenting opinion.


April 28, 2012 in Disability, Establishment Clause, First Amendment, Free Exercise Clause, Gender, Religion, Scholarship, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 10, 2012

Tennessee: Back to Anti-Evolution Teaching?

The Tennessee bill, HB 368, is wildly controversial and tamely written.  Most likely to become law (unless the Governor quickly vetoes it), the "ACT to amend Tennessee Code Annotated, Title 49, Chapter 6, Part 10, relative to teaching scientific subjects in elementary schools," provides:

a) The general assembly finds that:
(1) An important purpose of science education is to inform students about scientific evidence and to help students develop critical thinking skills necessary to becoming intelligent, productive, and scientifically informed citizens;
(2) The teaching of some scientific subjects, including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning, can cause controversy; and
(3) Some teachers may be unsure of the expectations concerning how they should present information on such subjects.

456px-Clarence_Darrow_cph.3b31130b) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to create an environment within public elementary and secondary schools that encourages students to explore scientific questions, learn about scientific evidence, develop critical thinking skills, and respond appropriately and respectfully to differences of opinion about controversial issues.

c) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to assist teachers to find effective ways to present the science curriculum as it addresses scientific controversies. Toward this end, teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.

d) Neither the state board of education, nor any public elementary or secondary school governing authority, director of schools, school system administrator, or any public elementary or secondary school principal or administrator shall prohibit any teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.

e) This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.

SECTION 2. By no later than the start of the 2011-2012 school term, the department of education shall notify all directors of schools of the provisions of this act. Each director shall notify all employees within the director's school system of the provisions of this act.


The law is the subject of a discussion today on Warren Onley's To The Point radio show in a segment entitled "Is Academic Freedom a Disguise for Religion?"   Audio here:



As many commentators have noted, the issue of evolution teaching is especially sensitive in Tennessee given the Scopes trial in 1925 with Clarence Darrow (pictured above) as Scopes' attorney.


April 10, 2012 in Establishment Clause, First Amendment, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, March 25, 2012

District Judge Finds Establishment Clause Violation for Trafficking Funding to Catholic Bishops

The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.

At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000).  Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.”  HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds. 

Only two organizations bid for the role of “independent contractor,” both of which are religious organizations.  The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB).  This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.”  This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility.  It stated it would require an assurance form all subcontractors regarding compliance.

    Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million. 

     The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.

    On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.

     On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.”  The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.”  Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.

     Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion: 

“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.”  That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.

The case is sure to be appealed. 


March 25, 2012 in Abortion, Due Process (Substantive), Establishment Clause, First Amendment, Mootness, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, January 13, 2012

Posner, Dreadlocks, and Free Exercise: Seventh Circuit Allows Prisoner Suit to Proceed

Writing the opinion in Grayson v. Schuler, Judge Posner, in his imitable style, has rejected what he terms a "Rastafarian exception" to a prison practice of allowing Rastafarians, but not others, to have dreadlocks.   In case readers of the opinion need a bit of tutelage on the subject, Posner instructs

"Dreadlocks can attain a formidable length and density, as shown in this photograph of the late Jamaican musician Bob Marley (a Rastafarian):"

Bob Marley in Grayson

Grayson, a former inmate of the Big Muddy Correctional Center, an Illinois prison, appeared pro se in the federal courts, arguing that the correctional officer who ordered the forcible shearing of his dreadlocks violated the Free Exercise Clause.  The officer had declared that Grayson's hair caused a security risk.  Grayson contacted the prison chaplain who informed him that "only Rastafarians are permitted to wear dreadlocks."  Grayson, Posner explains, 

is not a Rastafarian, but a member of the African Hebrew Israelites of Jerusalem; and according to the chaplain the members of that sect are not required by their faith to wear dreadlocks (this appears to be correct), and therefore, he concluded, the plaintiff was not entitled to wear them. (It’s the “therefore” that’s the issue in this appeal.)

Interestingly, the chaplain's opinion (as well as Posner's) about the tenets of the African Hebrew Israelites could raise an Establishment Clause concern.  Posner, however, discusses the vows of the Nazirites which includes letting the hair of the head "grow long," and citing to the Biblical character of Samson, whose seven braids, "could well have been dreadlocks."

Posner cites Employment Division v. Smith, 494 U.S. 872 (1990), with its rule regarding neutral laws of general applicability just discussed by the Supreme Court in Hosanna-Tabor, but notes that the applicability of Smith to prisoners is uncertain because of an earlier Supreme Court decision, O’Lone v. Shabazz, 482 U.S. 342, 348-50 (1987), "which requires prison authorities to “accommodate” an inmate’s

religious preferences if consistent with security and other legitimate penological concerns." Posner notes that O'Lone was not expressly overruled by Smith, or by Cutter v. Wilkinson, 544 U.S. 709 (2005) - - - neither of which occurred in a prison context, of course - - - and adds that "we’re not supposed to declare a decision by the Supreme Court overruled unless the Court makes clear that the case has been overruled, even if we’re confident that the Court would overrule it if the occasion presented itself."

Yet ultimately Posner states that the case does not rest on "accommodation" surviving Smith, but on the arbitrary discrimination favoring Rastafarians.  Indeed, it is this arbitrary discrimination that supports Posner's reversal of the summary judgment finding the officer was entitled to qualified immunity.   The officer "seems just to have been applying the Rastafarian exception, which could not reasonably be thought constitutional."

[image: from the opinion;
and thanks to a reader, we can now identify the correct source of the image as photographer David Corio, here]

January 13, 2012 in Establishment Clause, First Amendment, Free Exercise Clause, Religion | Permalink | Comments (2) | TrackBack (0)

Wednesday, January 11, 2012

The Supreme Court Recognizes the Ministerial Exception in Hosana-Tabor Evangelical Lutheran Church and School

In a unanimous and somewhat narrow opinion today, the United States Supreme Court in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws.   Justice Thomas wrote a short concurring opinion; Justice Alito authored a much longer concurring opinion, in which Justice Kagan joined.

391px-Martin_Luther_by_Lucas_Cranach_der_ÄltereThe litigation was the focus of a well attended and lively "Hot Topics" panel at the AALS meeting a few days ago, exploring the multi-layered doctrine and ambiguous facts.

One problem is the status of Cheryl Perich as a minister eligible for any "ministerial exception."  Chief Justice Roberts declined to provide a test, but reversed the Sixth Circuit's finding that Perich was not a minister.  Perich was a "called teacher" at a school who performed the same duties as a "lay teacher."  The Sixth Circuit and the EEOC found it relevant that Perich's "religious duties consumed only 45 minutes of each workday" and "the rest of her day was devoted to teaching secular subjects."   Roberts, however, wrote that the issue should not be "resolved by a stopwatch."  Instead, the Court considered the fact that the Hosana-Tabor had issued Petrich a "diploma of vocation" according her the title "Minister of Religion, Commissioned."

Another factual issue regarded Ms. Perich's dismissal as an employee.  Ms. Perich developed narcolepsy, was asked to resign, refused, and later stated that she had spoken to an attorney.  The School terminated her on the basis of her insubordination and threat to take legal action.  She filed a charge with the EEOC based on a claim of retaliation under the Americans with Disabilities Act (ADA).  Justice Alito's concurring opinion discusses the relevance of "retaliation" under the First Amendment Religion Clauses:

Hosanna-Tabor discharged respondent because she threatened to file suit against the church in a civil court.This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. In Hosanna-Tabor’s view, respondent’s disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith. Respondent does not dispute that the Lutheran Church subscribes to a doctrine of internal dispute resolution, but she argues that this was a mere pretext for her firing, which was really done for nonreligious reasons.

Altio then notes that such a pretextual argument would mean that "a civil court—and perhaps a jury—would be required to make a judgment about church doctrine."

While the concurring opinions avail themselves of the language of religious "autonomy" - - - a controversial concept especially in light of contemporary clergy sexual abuse issues - - - the Court's opinion avoids such language.  The Court specifically rejects the government's "parade of horribles" including retaliation for reporting criminal misconduct or testimony.  As the Court states,

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.

Given such language, commentators can surely criticize the case as carving out another exception, this time a "religious exemption," from anti-discrimination statutes a majority of the Court find unappealing.

While the Court's opinion relies on both the Establishment Clause and the Free Exercise Clause, stating that both "bar the government from interfering with the decision of a religious group to fire one of its ministers," those familiar with First Amendment Free Exercise Clause doctrine might wonder about precedent.  Specifically, one might question the relevance of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) - - - the peyote case - - - in which the Court declared that free exercise does not insulate against a neutral law of general applicability.  The Court did distinguish Smith:

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. [Citing Smith] (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

Thus, the Court found the contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses, as the government argued, to be without merit.  On one reading, this distinction protects religious institutions more than individuals.  On another, more cynical, reading, this distinction protects majority religious affiliation more than minority religious affiliation.  (Alito's concurring opinion is worth reading in that it stresses the religious specificity of "ministers" and seeks to broaden it).  The Court's reading of "outward physical acts" and "internal church decisions" may be workable, but it does veer close to the "autonomy" concept the Court avoided.

[image: Martin Luther by Lucas Cranach der Ältere, 1529, via] 

January 11, 2012 in Establishment Clause, First Amendment, Free Exercise Clause, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 10, 2012

Tenth Circuit Enjoins Oklahoma's Anti-Sharia Amendment

A three-judge panel of the Tenth Circuit today issued a preliminary injunction halting Oklahoma's effort to amend its constitution to include an anti-Sharia provision.  The court ruled in Awad v. Ziriax that the plaintiff, Muneer Awad, would likely succeed in challenging the provision under the Establishment Clause.  We previously posted on the case here.

The ruling is hardly a surprise.  The provision facially singles out and discriminates against Islam and Islamic law, even though there was no evidence that any Oklahoma court had ever considered or applied Islamic law, much less in a way that would inspire the state to ban it.  And the state apparently only weakly defended the provision, claiming that its only interest in the provision was to determine what law is applied in Oklahoma courts. 

The case grows out of Oklahoma voters' approval (by 70%) of the "Save our State" constitutional amendment, which reads:

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.  The courts shall not look to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law.  The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Muneer Awad, a Muslim, sued to stop its implementation, claiming that it would single him out for negative treatment because of his faith and inhibit his ability to practice his faith, in violation of both religion clauses. 

The Tenth Circuit ruled that Awad had standing, that the case was ripe for review, and that Awad succeeded in showing a likelihood of success on his Establishment Clause claim.  The court said that the provision discriminated among religions on its face (by singling out Islam), and thus had to satisfy strict scrutiny under Larson v. Valente (1982).  But all the state could come up with for its "compelling interest" was determining which law applied in Oklahoma courts--not enough, according to the court.  Moreover, the flat ban on Sharia Law was too rough a cut to meet the narrow tailoring (or "close[] fit[]") required under strict scrutiny.


January 10, 2012 in Cases and Case Materials, Establishment Clause, First Amendment, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, December 15, 2011

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Bill_of_Rights_Pg1of1_ACStill, it's a good day to reflect on the "Bll of Rights":

  • Amendment 1. 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.
  • Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
  • Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
  • Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  • Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
  • Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
  • Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
  • Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  • Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


[image from National Archives via] 

December 15, 2011 in Due Process (Substantive), Equal Protection, Establishment Clause, Fifth Amendment, First Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Interpretation, Privileges or Immunities: Fourteenth Amendment , Race, Reconstruction Era Amendments, Religion, Second Amendment, Seventh Amendment, Sixth Amendment, Speech, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Sunday, October 16, 2011

No Rehearing for Mt. Soledad Cross Case

The Ninth Circuit on Friday denied a petition for rehearing and for rehearing en banc of unanimous ruling by a three-judge panel on January 4, 2011, in Jewish War Veterans v. City of San Diego, holding that the Mt. Soledad cross violated the Establishment Clause.

The Mt. Soledad cross, the centerpiece of a veterans memorial in San Diego, has been the subject of lengthy litigation under the Establishment Clause and the California Constitution's No Preference Clause.  The cross is a mammoth, 43-foot structure that sits atop Mt. Soledad, surrounded by plaques honoring veterans, U.S. flags, and other secular symbols.  Here's a picture:


The earlier three-judge panel exhaustively surveyed the history of the cross and the site as it exists today.  It ruled that while there are some indicia of a secular purpose, and while the site includes some secular symbols, "[t]aking these factors into account and considering the entire context of the Memorial, the Memorial today remains a predominantly religious symbol."  The panel ruled that the cross violated the Establishment Clause under either Lemon v. Kurzman or Van Orden v. Perry.

The Ninth Circuit declined to rehear the case over a sharp dissent by Judge Bea and joined by Judges O'Scannlain, Tallman, Callahan, and Ikuta.  Judge Bea would have ruled that the cross did not violate the Establishment Clause under Van Orden alone.  In particular, Judge Bea said that the government's use of the symbol was secular, the context is secular, and the history--especially how long it has stood without being challenged--was secular.

If the government appeals, the case would give the Supreme Court a good opportunity to clarify Lemon and Van Orden--when exactly to use one or the other, and more precisely what Van Orden means.


October 16, 2011 in Cases and Case Materials, Establishment Clause, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 14, 2011

Ninth Circuit: Teacher Has No Right to Display God Banners

A unanimous three-judge panel of the Ninth Circuit ruled yesterday in Johnson v. Poway Unified School District that the District did not violate a teacher's First Amendment rights when officials ordered him to remove banners from his classroom reading "In God We Trust," "One Nation Under God," "God Bless America," "God Shed His Grace On Thee," and "All Men Are Created Equal; They Are Endowed By Their CREATOR."

Teacher Johnson argued that the district violated his rights under the Speech and Establishment Clauses when officials ordered him to remove the banners.  He argued that other district teachers displayed religious symbols in their classrooms--including Tibetan prayer flags, a John Lennon poster with the "Imagine" lyrics, a Mahatma Gandhi poster, a Dalai Lama poster, and the like--and that he was treated unfairly.  The district court ruled in his favor, saying that the district created a public forum and engaged in viewpoint discrimination by requiring Johnson, but not these others, to remove his banners.

The Ninth Circuit reversed.  It ruled that the district court erroneously applied public forum analysis, when it should have applied public employee doctrine under Pickering.  Applying Pickering, the court ruled that Johnson spoke in his capacity as a public school teacher, not as a private citizen, and that his speech was therefore not protected.  (The court said that Johnson displayed his banners in his room, under a time-honored policy in the district allowing teachers to decorate their own classrooms.  Thus his display was part of his job as a teacher, not his independent speech as a citizen.)

The court further ruled that the district's act in requiring Johnson to remove his banners did not violate the Establishment Clause.  Applying the Lemon test, the court ruled that the district had a secular purpose (because it ordered the removal as part of its vigilant efforts to avoid Establishment Clause problems) and that the district's order had a religion-neutral, sect-neutral effect (because in context the other displays that it allowed to remain--the Tibetan prayer flags, the Lennon poster, the Gandhi poster--all had a primarily secular meanings).

The result isn't a particular surprise; the court itself began its opinion with the line, "The answer is clear."


September 14, 2011 in Cases and Case Materials, Establishment Clause, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (2) | TrackBack (0)

Monday, August 22, 2011

Serfs, Jesus, and the Establishment Clause in Advanced Placement History Class

The scene is an advanced history class in an Orange County school, in one of the tonier school districts in the United States, in which Dr. James Corbett has been teaching the AP European History course for the past 16 years with pedagogical goals including critical thinking and provocative engagement with current events. 

In its opinion in CF v. Capistrano Unified School District, a panel of the Ninth Circuit considered the claim by Chad Farnan, a student in the class who eventually withdrew, that Dr. Corbett violated the Establishment Clause by evincing his hostility to religions in general and Christianity in particular.  One of Dr. Corbett's objectionable statements - - - recorded by the student without the teacher's knowledge - - - was a discussion of Joseph II (pictured right).  Anton_von_Maron_006

Joseph II, according to the recording, was trying to end serfdom, but was opposed by the serfs, against their own economic interests, because Joseph II was also trying to reform religion.  Dr. Corbett then analogized this to the situation in "red states" in which people vote against their economic interests and in favor of the Republican party because when they put on their "Jesus glasses" they can't "see the truth."  

Dr. Corbett argued that many of the statements were taken out of context and inaccurate, as well as being the product of a surreptitious recording that violated state law, but the panel declined to discuss that issue.  The panel also declined to reach the ultimate question as to whether a school teacher could violate the Establishment clause by being hostile to religions in general or Christianity in particular.  Instead, the panel found that the defendants were entitled to qualified immunity because any right involved in Farnan's theory of the case was not "clearly established at the time of the alleged misconduct" as would be required.  As the court stated:

We have little trouble concluding that the law was not clearly established at the time of the events in question — there has never been any reported case holding that a teacher violated the Establishment Clause by making statements in the classroom that were allegedly hostile to religion.

In its summation, the panel opined that teachers must be

given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

However, the court did note that at some point a  "teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility."   In this context, the panel's earlier description of Dr. Corbett as "a Christian who regularly prays and attends church services," is a bit troublesome.  Is it relevant that Dr. Corbett is a Christian, or more precisely, not an atheist?

But to be clear, the panel reserved judgment on whether that point had been reached, holding that there was no clearly established law regarding the possibility of such a point.

[image Portrait of Joseph II, Holy Roman Emperor by Anton von Maron via]

Update: See Dr. Corbett's comments below

August 22, 2011 in Establishment Clause, First Amendment, History, Opinion Analysis | Permalink | Comments (2) | TrackBack (0)

Monday, August 8, 2011

Third Circuit Finds School Board Prayer Violates Establishment Clause

Public school prayer violates the Establishment Clause of the First Amendment, at least since 1962's Engel v. Vitale, 370 U.S. 421 (1962), but legislative prayer that is sufficiently non-sectarian does not violate the Establishment Clause, at least since Marsh v. Chambers, 463 U.S. 783 (1983).

So what about prayer at the school board meeting?  

The issue - which seems fit for an exam - - - is one of analogy.  Is the school board meeting more like a public school function or more like a legislative body?

400px-The_Infant_Samuel_at_Prayer_-_Sir_Joshua_Reynolds The Third Circuit opinion in Doe v. Indian River School District adopts the school rule rather than the legislative "exception."  Reversing the district judge, the appellate panel found it important that students were often at the school board meetings, including for disciplinary proceedings or recognitions of honors.   After an extensive discussion of Establishment Clause precedent, the panel noted:

The Indian River School Board carries out its practice of praying in an atmosphere that contains many of the same indicia of coercion and involuntariness that the Supreme Court has recognized elsewhere in its school prayer jurisprudence. While there is no doubt that school board meetings do not necessarily hold the same type of personal and cultural significance as a high school graduation or perhaps even a football game, we take to heart the Supreme Court‟s observation that, in this respect, “[l]aw reaches past formalism.”  [quoting Lee v. Weisman, 505 US at 595]. 

Moreover, the panel noted that there were additional factors that might make students feel coerced: "The meetings take place on school property. The Board retains complete control over the meeting; it sets the agenda and the schedule."  Further, "the Board itself composes and recites the prayer" and is thus "involved in every aspect of the prayer."  Thus, it was more like public school - - - including the graduation ceremony involved in Lee - - - than like a legislative body.

After determining Lee v. Weisman, 505 U.S. 577 (1992) rather than Marsh was the correct precedent, the panel then struggled with the Lemon test from Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).  The panel noted the problems with the Lemon test, but noted it had not been overruled, as so proceeded to consider Lemon factors:  (1) whether the government practice had a secular purpose; (2) whether its principal or primary effect advanced or inhibited religion; and (3) whether it created an excessive entanglement of the government with religion.  The panel concluded the prayer practice was unconstitutional under Lemon.

While Doe is different from the Fourth Circuit legislative prayer opinion we recently discussed, in one respect it is quite similar.  The Third Circuit also noted that despite a broad written policy, the actual practice was to always have a prayer and that "the record shows that the prayers recited at the meetings nearly always—and exclusively—refer to Christian concepts." 

[image: The Infant Samuel at Prayer, by Joshua Reynolds, 1723- 1792, via]


August 8, 2011 in Establishment Clause, First Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, July 30, 2011

Fourth Circuit Holds Legislative Prayer Violates Establishment Clause

The Forsyth County Board of Commissioners, an elected body that governs Forsyth County, North Carolina, begins each of its meetings with a prayer and the pledge of allegiance. 

La_Saeta_by_Julio_Romero_de_Torres_(part) The practice in this situation, according to an opinion from the Fourth Circuit, violated the Establishment Clause of the First Amendment.  Affirming the district judge, who adopted a magistrate's findings, while the Board took "a hands-off approach to the actual content of the prayers," using clergy from a list, the actual prayers delivered frequently contained references to Jesus Christ, such as "We pray this all in the name under whom is all authority, the Lord Jesus Christ."  After some initial dispute, the Board attempted to clarify its policy, but still, almost four-fifths of the prayers referred to "Jesus," "Jesus Christ," "Christ," or "Savior," closing the prayer by mentioning Jesus.  According to the Fourth Circuit panel, "None of the prayers mentioned non-Christian deities."

The panel stated, "At its core, this is not a case about the Establishment Clause in general, but about legislative prayer in particular. This distinction is critical, for legislative prayer lies at the heart of two intersecting realities." 

The first reality is that legislative prayer "is deeply embedded in the history and tradition of this country," and as such, has been upheld by the United States Supreme Court in  Marsh v. Chambers, 463 U.S. 783, 786 (1983).

The second reality is that legislative prayer risks offending the Establishment Clause precept that the government may not prefer one particular sect or creed over another.  Legislative prayer should be welcoming and inclusive and as nonsectarian as possible.

The frequent and repeated references to Christ, as well as to specific tenets of Christianity, including discussions of "Calvary," placed these practices over the line of what is permissible under the Establishment Clause.  While the Board's stated policy was permissible and neutral, the manner in which it was implemented was a different matter.  Importantly, as the panel noted, "citizens attending Board meetings hear the prayers, not the policy."

Circuit Judge Niemeyer wrote a lengthy and vigorous dissent, arguing that the majority reduces prayer to a "civil nicety," an accusation which the majority discussed in its opinion.  The dissenting judge found fault with the majority's attempt to "legislate" a "government censorship of religious expression" "based on the imprecise notion of nonsectarianism, bowing to political correctness or universal inoffensiveness.

While there is some dispute regarding the facts between the majority and the dissent - - - just how focused on Jesus were the prayers that were delivered? - - -precedent seems strongly weighted in favor of the majority's conclusion.

[image: from La Saeta, Julio Romero de Torres, 1918, via]

July 30, 2011 in Establishment Clause, First Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 20, 2011

Florida Federal Court Rules Ten Commandments Monument Violates Establishment Clause

Senior District Judge Maurice M. Paul (N.D. Fla.) ruled last week that a Ten Commandments monument displayed just outside the Dixie County Courthouse is government speech and violates the Establishment Clause.  Judge Paul ordered Dixie County to remove the monument within 30 days.

The case involves a privately funded monument, over five-feet tall and weighing six tons, that displays the Ten Commandments and text reading "LOVE GOD AND KEEP HIS COMMANDMENTS."  Here's a picture, courtesy of the ACLU of Florida:


The private funder secured County Commission approval before initiating the project.  After the ACLU sued, the Commission issued its "Monument Placement Guidelines," which purported to establish a limited public forum on the courthouse steps, where the monument is located.

The county government thus argued that the monument was private speech, protected under the First Amendment Speech Clause.  Judge Paul didn't buy it.  He ruled that the monument is government speech.  He noted that while the monument is not tethered and contains the name of the private funder (with an indication that the monument belongs to the private funder), it nevertheless has all the appearances of permanence; and its location "make[s] it clear to all reasonable observers that Dixie County chooses to be associated with the message being conveyed."  Op. at 10.  (Judge Paul compared the case to the OT 08 case, Pleasant Grove City v. Summum, in which the Court ruled that the placement of a privately-funded, permanent monument in a government park, alongside other privately-funded monuments, is government speech.  If so there, so much more so here--a permanent monument on the courthouse steps.)  To get a sense, take a look at this picture, also courtesy of the ACLU of Florida:


Judge Paul then ruled that the monument violated the Establishment Clause:

As noted previously, permanent displays carry the indicia of government speech.  This strongly implies endorsement of the message being conveyed.  However, beyond the mere permanence of the monument, the context of the display establishes Dixie County's endorsement of its religious message.  The monument is five-feet tall, made of six tons of granite, and sits alone at the center of the top of the steps in front of the county courthouse that houses every significant local government office.  "No viewer could reasonably think that it occupies this location without the support and approval of the government."  By permitting the display of the monument in this setting, "the county sends an unmistakable message that it supports and promotes" the religious message that appears on it.

Op. at 12 (citations to County of Allegheny v. ACLU omitted).

Two terms ago, the Court ruled in Pleasant Grove that a privately-funded, permanent monument in a public park, alongside several other privately-funded monuments, was government speech (and not a public forum).  As such, the government's rejection of a privately-funded monument was not subject to scrutiny under the Free Speech Clause.  But it would have been subject to scrutiny under the Establishment Clause (if the plaintiff-respondent raised it).  (That doesn't mean the plaintiff-respondent would have won, just that the government's rejection of its monument would have been subject to Establishment Clause analysis.) 

Justice Souter noted in concurrence that the play between the government speech doctrine and the Establishment Clause hadn't been worked out.  He worried that a government, in order to dodge Establishment Clause problems, would wisely accept more monuments whenever an accepted monument had a religious character--"safety in numbers"--but that this strategy would in turn would "make it less intuitively obvious that the government is speaking in its own right simply by maintaining the monuments."  The result: The government could unwittingly create a speech forum, diluting its government speech defense and forcing it, under the Free Speech Clause, to accept monuments from all comers, including those that don't represent its views.  If so, Justice Souter argued,

the government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause's stricture against discriminating among religious sects or groups.  Under this view of the relationship between the two doctrines, it would be easy for a government to favor some private religious speakers over others by its choice of monuments to accept.

Whether that view turns out to be sound is more than I can say at this point.  It is simply unclear how the relatively new category of government speech will relate to the more traditional categories of Establishment Clause analysis, and this case is not an occasion to speculate.

Souter Concurrence, at 3.  (For more on Justice Souter's worry, check out Prof. Mary Jean Dolan's (John Marshall) recently posted piece The Cross National Memorial: At the Intersection of Speech and Religion.)

If Pleasant Grove wasn't an occasion to explore the play between the government speech doctrine and the Establishment Clause (because the latter wasn't raised), this case isn't a likely candidate to explore it either, but for a different reason: There's only one monument.  This is a straight-forward Establishment Clause case and not one that raises issues at the intersection of these two doctrines.


July 20, 2011 in Cases and Case Materials, Establishment Clause, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 13, 2011

Polygamy Challenge: Complaint Claiming Utah's Statute Unconstitutional

The "Sister Wives" family, made popular by a reality television show, have filed a complaint in federal district court in Utah challenging the constitutionality of Utah's polygamy statute. 

Represented by Jonathan Turley (h/t for complaint), the case garnered press including from NPR even before the lawsuit was filed.

Standing seems easily established.  Before the show, there was little attention paid to the group, but that was not the case after the reality showed aired. 



The complaint characterizes the Brown Family (they all have the same surname) as a plural "family" rather than using the term plural marriage.  Indeed, Corey Brown, the sole male, is legally married to only one of the women.  This arguably runs afoul of Utah Stat. 76-7-101(1), which defines bigamy broadly: 

(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Section 2 of the statute provides that bigamy is a felony of the third degree.

 The complaint alleges the Utah statute is unconstitutional based on six claims: due process and equal protection under the Fourteenth Amendment, and free exercise of religion, free speech, freedom of association, and anti-establishment of religion under the First Amendment.

Perhaps most controversially, the complaint relies upon Lawrence v. Texas in which the Court declared Texas' sodomy statute unconstitutional under the due process clause.  For some, this type of "slippery slope" argument is uncomfortable, and made more uncomfortable because, as the TMZ entertainment site phrases it, "The Mormons and the gays -- they don't always get along." 

Gordon_mormon_afloat Certainly, although bigamy has a colonial history, for Americans the notion of plural marriage - - - and plural families - - - is inextricably intertwined with the Mormon religion as it appeared in the antebellum nation. 

One of the best histories of this period is Sarah Barringer Gordon's The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002).   Gordon's history is essential reading for anyone interested in pursuing scholarship on polygamy.

Gordon discusses the history behind the case of  Reynolds v.  United States, 98 U.S. 145 (1878), a “test case” in which Mormon leaders had a “reasonable hope” of their First Amendment claims being vindicated.  But of course, in Reynolds the Court rejected those claims, in part because polygamy was not "American."

On the African context of polygamy, some of the best writing is by my colleague Peneleope Andrews, including her discussions of South African President Zuma's multiple marriages.

As for the analogies between same-sex marriage and plural marriages, there has been much scholarship on this issue, including my own piece in Temple Law Review.


July 13, 2011 in Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Family, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Privacy, Religion, Sexuality, Standing, Television | Permalink | Comments (2) | TrackBack (0)

Friday, April 15, 2011

Voting Restricted to Males for Leadership in Religious Council that Receives State Funding: Constitutional?

Religious communities?  Gender?  Voting rights?  State action? 

A host of constitutional law problems are raised by the following:

According to the bylaws of the Crown Heights Jewish Community Council, a social service agency and community pillar that has received millions of dollars in government grants over the years, only those who meet the following requirements can vote for its leadership:

  • Jewish and religiously observant residents of Crown Heights
  • Married, previously married or at least 30 years old
  • Male

Now Eliyahu Federman, a Crown Heights resident and recent law school graduate [of CUNY School of Law], is challenging that last requirement, saying he believes it to be unconstitutional.

The rest of today's NYT story is here.  

For ConLawProfs still looking for a challenging exam question, this might be a good place to start.


1912 NYC Women's suffrage

[image: Suffrage Parade in New York City, 1912, via]

April 15, 2011 in Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, News, Religion, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, April 14, 2011

Seventh Circuit Rules No Standing to Challenge Presidential National Day of Prayer Proclamation

In a succinct Opinion authored by Chief Judge Easterbrook in Freedom From Religion Foundation v. Obama, the Seventh Circuit has held that the organization does not have standing to challenge the Presidential Proclamation of a National Day of Prayer.  The Opinion's appendix notably includes Obama's Proclamation as Appendix B and a Proclamation by George Washington as Appendix A. 


As we discussed, last year District Judge Barbara Crabb declared the proclamation of a national day of prayer unconstitutional: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy."

Reversing the lower court, the Seventh Circuit did not find sufficient injury to confer standing:

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles. It is difficult to see how any reader of the 2010 proclamation would feel excluded or unwelcome. Here again is the proclamation’s only sentence that explicitly requests citizens to pray: “I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, grace, and protection as we meet the challenges before us.” But let us suppose that plaintiffs nonetheless feel slighted. Still, hurt feelings differ from legal injury. The “value interests of concerned bystanders” (United States v. SCRAP, 412 U.S. 669, 687 (1973)) do not support standing to sue.

Further, the Seventh Circuit noted:

                    If this means that no one has standing, that does not change the outcome.

Judge Williams wrote separately to concur but express some concerns with the "majority's reasoning and the uncertainty of the Supreme Court's precedent."   Specifically, Judge Williams rejects the majority's reliance on Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), a challenge to the "under God" phrase in the Pledge of Allegiance, by a noncustodial father.  As Williams notes, it was Newdow's custodial status and not the "feelings of exclusion" that foreclosed Newdow's standing.  Additionally, Williams contends:

 The Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases. As the Ninth Circuit recently noted, the Court has
decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government, including cases involving a creche in a county courthouse, a creche in a public park, the Ten Commandments displayed on the grounds of a state capitol, the Ten Commandments displayed at a courthouse, a cross displayed in a national park, prayer in a football game, school prayer, a moment of silence at school, Bible reading at a public school, and a religious invocation at graduation. [citation omitted].  In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs.  “To ignore the import of those cases for the standing analysis, one would have to believe the Supreme Court repeatedly overlooked a major standing problem and decided a plethora of highly controversial cases unnecessarily and inappropriately.

Judge Williams continues by noting that "as recently as last week, the Court stated in Arizona Christian School Tuition Organization v. Winn that even though it had decided a number of Establishment Clause cases on the merits that appeared to be in tension with its decision to find no standing in the case before it, those cases were not dispositive because they did not address the threshold standing question."

In Hein v. Freedom from Religion Foundation decided in 2007 by the Supreme Court, the organization was similarly denied standing in its suit against faith-based funding.


[image: Old Woman in Prayer by Nicholas Maes circa 1656  via]

April 14, 2011 in Establishment Clause, First Amendment, Opinion Analysis, Religion, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 13, 2011

Footnote of the Day: Bill of Rights Provisions Incorporated Against the States

In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause? 

The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.  

As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12

Amendments 1-8

With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

 In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:

                the Sixth Amendment right to a unanimous jury verdict;
                the Third Amendment’s protection against quartering of soldiers;
                the Fifth Amendment’s grand jury indictment requirement;
                the Seventh Amendment right to a jury trial in civil cases;
                the Eighth Amendment’s prohibition on excessive fines

 At issue in McDonald, of course, was the Second Amendment's right to "keep and bear arms."  

In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.


April 13, 2011 in Cases and Case Materials, Due Process (Substantive), Establishment Clause, Federalism, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Games, History, Interpretation, Second Amendment, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, April 9, 2011

Footnote of the Day: Tradition

In Arizona Christian School Tuition Organization v. Winn, decided this week, a deeply divided Court  reversed the Ninth Circuit's finding that an Arizona statute providing a tax credit to be used for education at religiously-funded schools violated the Establishment Clause.  The Court held that the taxpayer plaintiffs lacked standing.

In Justice Kagan's dissenting opinion, joined by three other Justices, she uses the word tradition" in footnote 10:

On this traditional view of the harm to taxpayers arising from state financing of religion, the Plaintiffs here can satisfy not only Article III’s injury requirement, but also its causation and redressability requirements. The majority’s contrary position, ante, at 15–16, stems from its miscasting of the injury involved; once that harm is stated correctly, all the rest follows. To wit: The Plaintiffs allege they suffer injury when the State funnels public resources to religious organizations through the tax credit. Arizona, they claim, has caused this injury by enacting legislation that establishes the credit. And an injunction limiting the credit’s operation would redress the harm by preventing the allegedly unlawful diversion of tax revenues. The Plaintiffs need not, as the majority insists, show that this remedy would “affect . . . their tax payments,” ante, at 16, any more than the taxpayer in Flast had to establish that her tax burden would decrease absent the Government’s funding of religious schools. As we have previously recognized, when taxpayers object to the spending of tax money in violation of the Establishment Clause (whether through tax credits or appropriations), “aninjunction against the spending would . . . redress [their] injury, regard-less of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 348–349 (2006).

In the text accompanying this footnote, Kagan cites a portion of DaimlerChrysler as "describing how the Flast Court’s understanding of the Establishment Clause’s history led the Court to view the alleged “injury” as the expenditure of ' "tax money" in aid of religion.' "   Dissenting Opinion at 19.

James_Madison Moreover, Kagan's discusses some specific history and tradition relevant to the Establishment Clause: the famous statement by James Madison (pictured left) in Memorial and Remonstrance that governments should not “force a citizen to contribute three pence only of his property forthe support of any one establishment.’”  This is quoted by the Court, but Kagan disputes the majority's reliance:

And finally, James Madison provides no comfort to today’s majority. He referred to “three pence” exactly because it was, even in 1785, a meaningless sum of money; then, as today, the core injury of a religious establishment hadnaught to do with any given individual’s out-of-pocket loss.

Dissenting Opinion at 18.  Whenever the majority in Winn considers “tradition”  it does so in the text; the Court’s opinion does not possess any footnotes.  Justice Kennedy, writing for the Court, most explicitly invokes "tradition" by stating:

The concept and operation of the separation of powers in our National Government have their principal foundation in the first three Articles of the Constitution. Under Article III, the Federal Judiciary is vested with the“Power” to resolve not questions and issues but “Cases” or “Controversies.” This language restricts the federal judicial power “to the traditional role of the Anglo-American courts.” Summers v. Earth Island Institute, 555 U. S. 488, ___ (2009) (slip op., at 4). In the English legal tradition, the need to redress an injury resulting from a specificdispute taught the efficacy of judicial resolution and gavelegitimacy to judicial decrees. The importance of resolving specific cases was visible, for example, in the incremental approach of the common law and in equity’s considerationof exceptional circumstances. The Framers paid heed to these lessons.

Opinion at 4.

The role of “tradition” in recent Supreme Court cases is the subject of a new article, Constitutional Traditionalism in the Roberts Court by Louis J. Virelli III, Professor at Stetson University College of Law, draft available on ssrn, forthcoming in Pittsburgh Law Review.  Virelli considers the role of “tradition” in standing cases, as well as in other constitutional areas such as the dormant commerce clause, and the Fourth, Sixth, and Fourteenth Amendments. While Virelli discusses  “tradition” as a theoretical concept, his goal is not to enter the ideological fray, but instead his main project is an empirical one.   What does the Court actually say about tradition?  Using a dataset of the first five years of decisions from The Roberts Court, starting October 1, 2005, he searched for all cases that that contain the term “constitution” and at least one of the following  “tradition-related” terms:  “tradition,”  “culture,” “custom,” “heritage,”  or “history” with a yield of 222 entries.    He shows that some form of traditionalism was relied upon in approximately 44% of the cases decided by the Roberts Court.   

Virelli also provides an empirical portrait of the individual Justices in terms of their use of “tradition-related” language and provides some wonderfully illustrative bar graphs.  The Justice most likely to resort to tradition?  Not surprisingly, it is Justice Scalia.  The Justice least likely?  Perhaps more surprisingly, Justice Thomas.   Justice Kennedy, author of the majority opinion in the just-decided Winn, is third, after Scalia and Roberts.  Justices Sotomayor and Kagan are not included in years of the analysis, but the analysis includes Justices Stevens and Souter, with Souter not being as much of a traditionalist in the Roberts Courts years as he seemed to be earlier.

Perhaps in a future project, Professor Virelli will illuminate the intersection between traditionalism and footnotes?


[image: James Madison, 1818, Portrait in the White House Collection, via]

April 9, 2011 in Cases and Case Materials, Courts and Judging, Establishment Clause, First Amendment, Games, History, Interpretation, Opinion Analysis, Recent Cases, Religion, Scholarship, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, April 4, 2011

No Standing in Establishment Clause Challenge: Arizona Christian School Tuition Organization v. Winn Opinion Analysis

The Court issued its 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, reversing the Ninth Circuit's finding that the Arizona statute violated the Establishment Clause by holding that the challengers lacked standing.

In his concurring opinion, Justice Scalia identifies the "struggle" between the majority and dissent as being whether the challenge to the Arizona tuition tax credit falls within the narrow exception of Flast v. Cohen, 392 U.S. 83 (1968).  For Scalia (joined by Thomas), this struggle is unnecessary because the "misguided" decision of Flast v. Cohen should be repudiated. Stained Glass

The Arizona provision at issue in Winn allows a tax credit for a contribution to school tuition organizations, STOs, many of which are religious. 

Writing for the Court, Justice Kennedy quickly sets the tone by noting that the challengers "sought intervention from the Federal Judiciary."  In further description of the facts, Kennedy notes that while the challengers "may be right that Arizona’s STO tax credits have an estimated annual value of over $50 million," the Arizona Christian School Tuition Organization is also right that "the STO program might relieve the burden placed on Arizona’s public schools," and the "result could be an immediate and permanent cost savings for the State." 

Kennedy thereafter analyzes the requirement of particularized injury:

Even assuming the STO tax credit has an adverse effect on Arizona’s annual budget, problems would remain. To conclude there is a particular injury in fact would require speculation that Arizona lawmakers react to revenue shortfalls by increasing respondents’ tax liability.[citation omitted].  A finding of causationwould depend on the additional determination that any tax increase would be traceable to the STO tax credits, as distinct from other governmental expenditures or other tax benefits. Respondents have not established that an injunction against application of the STO tax credit would prompt Arizona legislators to “pass along the supposed increased revenue in the form of tax reductions.”

Thus, the injury must be economic, give that the "STO tax credit is not tantamount to a religious tax or to a tithe and does not visit the injury identified in Flast." 

Kagan, writing for the four dissenting Justices, argues that there is little, if any, difference between appropriations and tax expenditures:  "Cash grants and targeted tax breaks are means of accomplishing the same government objective," and taxpayers who "oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other."

Kagan criticizes the Court's opinion as offering a "road map —more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge":

Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts. And by ravaging Flast in this way, today’s decision damages one of this Nation’s defining constitutional commitments. “Congress shall make no law respecting an establishment of religion”—

Kennedy's Opinion for the Court ends by appealing to the prospect of a different type of damage and constitutional commitment: limited judicial power.

Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagreeswith them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts mustbe more careful to insist on the formal rules of standing,not less so. Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress’ power to change. The present suit serves as an illustration of these principles. The fact that respondents are state taxpayers does not give them standing to challenge the subsidies that [Arizona statute] §43–1089 allegedly provides to religious STOs. To alter the rules of standing or weaken their requisite elements would be inconsistent with the case-or-controversy limitation on federal jurisdiction imposed by Article III.


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April 4, 2011 in Cases and Case Materials, Establishment Clause, First Amendment, Opinion Analysis, Religion, Standing, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)