Wednesday, August 1, 2012
The Sixth Circuit ruled today in Satawa v. Macomb County Road Commission that the Commission's rejection of a permit for a private display of a creche in the median of a public highway violated free speech and equal protection, but not the Establishment Clause.
The ruling sends the case back to the trial court to proceed on the free speech and equal protection issues. But unless something changes as the case unfolds beyond summary judgment, the ruling also probably means that the creche can stay.
The case arose out of a family's year-after-year display, around Christmas, of a creche in the median of a public road in Macomb County, Michigan. Eventually, the Freedom from Religion Foundation complained, and the Commission asked the family to remove the display. When the family applied for a permit for the display the following year, the Commission declined. The Highway Engineer sent a letter to the family explaining that the denial was based on the County's concern, after consulting an attorney, that the display would violate the Establishment Clause.
The family sued, and the County changed its story. After the case was filed, the Engineer said that the Commission denied the permit for safety reasons. He even said that he consulted with Commission members on the safety questions outside of formal meetings. (The court said that these statements weren't credible, though: the Engineer's precise stated safety reasons changed; and the Engineer's meetings were disputed.) The district court granted summary judgment for the Commission on all of the plaintiffs' claims--free speech, equal protection, and Establishment Clause.
The Sixth Circuit ruled that the permit denial violated free speech and equal protection, but not the Establishment Clause. As to speech, the panel first determined the forum--a public forum. The panel explained:
The Mound Road median is difficult to define because it has objective characteristics typical of both public and non-public fora. Like a public park . . . the median is landscaped and has benches for people to use. It also contains "memorial trees and brass memorial plaques affixed to rocks." These plaques are discernable only from the median--they are too small to be read by a passing motorist. Across Chicago Road, in a similar median, is the gazebo, erected by the City of Warren Historical Society, which contains more space for people to assemble.
On the other hand, the median is in the middle of a busy eight-lane road, with a fifty-mile-per-hour speed limit. There does not appear to be any special parking area for the median, nor are there dedicated public restrooms. However, there is pedestrian access from a sidewalk that crosses the median and connects the two sides of Mount Road.
On balance, we hold that the Mound Road median is a traditional public forum. Residents of Warren apparently use the median for a variety of expressive purposes, such as the display of farm equipment (meant to show the historical nature of the village) and memorial plaques. The median, moreover, invites visitors. It contains park benches and is accessible by sidewalk. . . . A public sidewalk allows access to the median, and public benches populate it.
Op. at 15-16. The court said that the Commission's religious motivation in rejecting the permit triggered strict scrutiny; and the Commission's interest in avoiding an Establishment Clause violation was not compelling. Why? Because granting the permit and allowing the display would not have created an Establishment Clause problem in the first place. ("Where, as here, '[t]he State did not sponsor [the religious] expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the same terms required of other private groups,' the government would not violate the Establishment Clause by granting the permit." Op. at 22-23 (quoting Capitol Square Review Board v. Pinette)).
As to equal protection, the court ruled that the Commission treated the private, fully protected religious display differently than other displays on the median; that the disparate treatment triggered strict scrutiny (because of the protected religious speech); and that the Commission couldn't meet this standard (for the same reasons it couldn't meet it under free speech analysis).
Finally, as the the Establishment Clause, the court ruled that the Commission denied the permit in order to comply with the Constitution--the very same Establishment Clause that the family claimed it violated. This, the court said, was a secular purpose having nothing to do with animosity toward religion.
Monday, July 23, 2012
In its en banc opinion today in Doe v. Elmbrook School District, the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church.
The majority stressed the specific facts concluding that "the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the [School] District’s actions to withstand the strictures of the Establishment Clause." It would be a "very different case," the opinion notes, "if a church sanctuary were the only meeting place left in a small community ravaged by a natural disaster." But here, the schools rented the church because the space had better seating and air conditioning, despite the large cross, the pews with Christian hymn books, and other religious literature and symbols.
Judge Flaum's careful opinion for the majority notes that the three-pronged test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), “remains the prevailing analytical tool for the analysis of Establishment Clause claims,” citing circuit precedent, and articulates the Lemon test: a governmental practice violates the Establishment Clause if it (1) lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive entanglement with religion. More importantly, Flaum highlighted the "endorsement test" (as part of Lemon's second prong) and the coercion test, certainly "less clear" in terms of its relation to the Lemon test. Considering the facts - - - and the "social facts" - - - Flaum's opinion concluded that in this instance the graduation in church conveyed a message of endorsement and could not be meaningfully distinguished from the Court's coercion precedent, Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
The dissenting opinion by Judge Ripple, joined by Easterbrook and Posner, stresses the church as a mere "landlord." Easterbrook's sole dissenting opinion mines a similar vein: "Holding a high school graduation in a church does not “establish” that church any more than serving Wheaties in the school cafeteria establishes Wheaties as the official cereal." Posner's sole dissenting opinion levels the critique at the doctrine itself:
The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance. See, e.g., Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late night horror movie” that can’t be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart”).
As the majority acknowledges, and the dissents argue, the analogy to voting in churches is a pertinent one. But the majority distinguishes the “history and circumstances” of voting practices from high school graduations.
At more than 80 pages - - - with the dissents as lengthy as the majority - - - this opinion provides much fodder for the continuing debates about the efficacy of Establishment Clause doctrine. Yet at its base, there seems to be a great divide regarding the relevance of a large cross at a high school graduation.
Monday, May 21, 2012
Forty-three Catholic institutions filed 12 separate suits today against HHS Secretary Kathleen Sebelius to halt HHS regulations that they say would require them to "provide, or facilitate the provision of, abortion-inducing drugs, sterilization, and contraceptive services to its employees in violation of the centuries' old teachings of the Catholic Church."
The move is the latest in the ongoing debate between the church and the administration over new HHS guidelines under the Patient Protection and Affordable Care Act that require insurers and group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." The plaintiffs reject the White House's February 2012 compromise--to exempt religious organizations that have religious objections from directly paying for those services--as insufficient.
Notre Dame's complaint alleges violations of the First Amendment religion and speech clauses, the Religious Freedom Restoration Act, and the Administrative Procedures Act. It seeks declaratory and injunctive relief and attorneys' fees.
As to its religion clause claims, Notre Dame alleges that the government has no compelling interest in the requirement, that the requirement substantially burdens its religious exercise; that the requirement excessively entangles government in religion (because it requires a government determination of whether the purpose of the organization is to inculcate people into its tenets in order to qualify for an exemption); and that the requirement discriminates among religions (because it treats those religions that do not oppose "abortifacients" differently than those that do).
As to its speech claim, Notre Dame argues that the requirement and counseling are viewpoint-based compelled speech in violation of the First Amendment.
Notre Dame claims that under HHS regulations it has to provide "contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" itself, and not through a third-party insurer. That's because Notre Dame does not contract with a separate insurance company for its employees' health insurance; instead, it offers self-insured plans. It also claims that it doesn't qualify for an exemption, because it's not a church or an exclusively religious activity--the exemptions in Section 6033(a)(3)(A)(i) and (iii), respectively, of the IRC.
Thursday, May 17, 2012
The Second Circuit, in its opinion today in Galloway v. Town of Greece, found that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity."
The evidence, as the unanimous panel described it, was that of the 130 different invocations between 1999 and June 2010, two-thirds contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”
The other third were theistic, but more "generic," including ones by Christians, Jewish, and Baha'i prayer givers, all of whom referenced God. There was also a Wiccan prayer, in which the Wiccan priestess invoked Athena and Apollo, apropos of the Town’s name.
But it was not only the content of the prayers. As the court stated, in concluding that "the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint," because "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity," the conclusion is supported by "several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials." The court emphasizes that it did "not not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case."
The panel emphasized what would be constitutional: "a practice such as the one to which the town here apparently aspired" meaning one that is "inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief." (emphasis added).
In short, one invocation to Athena out of 130 is simply not sufficient, and not only in Greece.
Saturday, May 12, 2012
Saturday Evening Review: Julie Nice on the "Responsible Procreation" Argument in Same-Sex Marriage Constitutional Litigation
With President Obama making news this week proclaiming his personal support for same-sex marriage, after an extensive "evolution," it's a good time to take a look at scholarship on the constitutional arguments.
Obama specifically mentioned same-sex couples "raising kids together." But one of the more odd - - - at least on first review - - - arguments in support of state marriage being limited to opposite sex couples is that this is acceptable, but that opposite sex couples need more "encouragement" to marry. This is the so-called "responsible procreation" state interest. Perhaps it reached its most interesting articulation in the pronouncement of New York's highest court, an opinion subject to a skewering analysis - - - and fun read - - - in John Mitchell's Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case, available on ssrn.
ConLawProf Julie Nice (pictured below) has now elaborated this odd notion in The Descent of Responsible Procreation: A Genealogy of an Ideology, forthcoming in Loyola Los Angeles Law Review, draft available on ssrn. With her usual scholarly integrity matched by innovative analysis, Nice "traces the genealogy of responsible procreation."
She notes that same sex constitutional litigation has changed remarkably during the past several decades, with the amount of such litigation increasing substantially. With state justifications eroding, especially since blatant discrimination has become more disfavored, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.
Nice explains that the justification is rooted in religion. It appeared as a justification of the federal Defense of Marriage Act. State courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while the New York court used it as a justification for a rejection of constitutional challenge to same-sex-marriage bans.
While the saga of Perry v. Brown is far from over, Nice predicts that the "responsible procreation" state interest is "on the wane." She ultimately argues the emerging trend is that both executive officials and courts are rejecting the "responsible procreation" rationale and concluding that the same-sex-marriage ban is drawn, not to further a proper legislative end but to make same-sex couples and their children unequal to everyone else. She contents that even conservative commentators defending the same-sex-marriage ban openly concede that it is drawn to disadvantage same-sex couples and to favor opposite-sex couples.
Thus, she concludes regardless of which level of scrutiny is applied, contemporary constitutional jurisprudence is quite clear that such an invidious ideology is not a legitimate basis for law.
An article worth reading that not only puts the same-sex marriage constitutional issues into perspective but also provides an excellent primer on equal protection and constitutional litigation.
May 12, 2012 in Equal Protection, Establishment Clause, Family, Federalism, Fourteenth Amendment, Religion, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Friday, May 11, 2012
Indiana, like most states, allows state officials, judges, and certain religious officials to "officiate" at marriage ceremonies, performing the legal requirement often called solemnization. In popular understandings, this is the person who asks the question of the persons to be married which they must each answer something akin to "I do."
But who gets to officiate? Generally, the persons are listed by statute. Indiana Code 31-11-6 lists the persons authorized to solemnize marriages, as:
(1) A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.
(2) A judge.
(3) A mayor, within the mayor's county.
(4) A clerk or a clerk-treasurer of a city or town, within a county in which the city or town is located.
(5) A clerk of the circuit court.
(6) The Friends Church, in accordance with the rules of the Friends Church.
(7) The German Baptists, in accordance with the rules of their society.
(8) The Bahai faith, in accordance with the rules of the Bahai faith.
(9) The Church of Jesus Christ of Latter Day Saints, in accordance with the rules of the Church of Jesus Christ of Latter Day Saints.
(10) An imam of a masjid (mosque), in accordance with the rules of the religion of Islam.
The Center for Inquiry, a secular humanist group, has filed a complaint challenging the constitutionality of the section, based on its argument that it would like to perform secular weddings. The complaint avers that secular ceremonies by state officials may not be desirable for some secular humanists: it would have "political overtones" and the official may not know the couple personally or share their values. Such is alleged to be the case with the individual plaintiffs who have joined the Center for Inquiry.
The gravamen of the argument is that the Indiana statute embodies a preference for religion over irreligion and therefore violates the Establishment Clause. The ACLU is representing the plaintiffs in Center for Inquiry v. Clerk, Marion County, and its press release is here.
[image: 14th C wedding via]
Thursday, May 3, 2012
This 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]
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.
Professor 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.
Tuesday, April 10, 2012
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.
b) 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.
Sunday, March 25, 2012
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.
Friday, January 13, 2012
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):"
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]
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.
The 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]
Tuesday, January 10, 2012
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.
Thursday, December 15, 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.
- 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
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.
Wednesday, September 14, 2011
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."
Monday, August 22, 2011
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).
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
Monday, August 8, 2011
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?
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]
Saturday, July 30, 2011
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.
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]
Wednesday, July 20, 2011
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.