Thanks to SCOTUSblog, we have access to the cert petitions.
Opinion Below
Cert. Petition
Brief in Opposition
Reply Brief
Amicus Brief of the Humane Society of the United States

Related posts

• Thoughts on Pleseant Grove v. Summum (April 11, 2008)
• Supreme Court Issues First Orders List Of The Year (January 6, 2008)
• Supreme Court Grants Review In Six Cases; Will Likely Hear Them in April (January 16, 2009)

My favorite balancing test came from Judge Level of the Second Circuit in a dissent:

Judge Leval did not consider the FCC’s policy with respect to the word “shit,” although he strongly suggested that he did not consider that term to be indecent. Id. at 59a n.18 (reasoning that “there is an enormous difference between censorship of references to sex and censorship of references to excrement” because, “[f]or children, excrement is a main preoccupation of their early years”).

Res. Brief at 15. Can anyone do better? What is an actionable line to decide when obscenity is punishable?

Related posts

• Thoughts on Pleseant Grove v. Summum (April 11, 2008)
• Supreme Court Gives Profanity A Second Thought (March 17, 2008)
• BONG HITS 4 JESUS (May 6, 2007)

A park in Pleasant Grove, Utah features a number of monuments commemorating important events in the cities history, the most important of which is one of the Ten Commandments that was dedicated to them by the Fraternal Order of Eagles in 1971. In 2003, the local chapter of the Summum religious order wrote a letter to the mayor requesting that their own monument be erected to honor the Seven Aphorisms. The mayor wrote back rejecting their proposal claiming that all displays in this park must a) “directly relate to the history of Pleasant Grove” or b) be “donated by groups with long-standing ties to the Pleasant Grove community.” Thecity put the mayor’s ideas into law a year later and when the Summum’s new request was ignored, they filed suit claiming injunctive relief and monetary damages.
The district court denied them injunctive relief and they appealed to the Tenth Circuit.

A three-judge panel concluded that the monument’s position in the park was an instance of private speech taking part in a ‘traditional public forum.’ The majorities focus on ‘forum analysis’ came as a shock to many who had expected the Court to consider the monument an instance of government speech to be regulated according to the establishment clause. When the majority called upon ‘forum analysis,’ they triggered the set of criterion that accompany a suppression of a particular form of speech and the strict scruitiny that follows.

The panel first concluded that parks are traditional public forums and as such, “the city cannot close or otherwise limit a traditional public forum by fiat.” The court then sought to find whether or not the city’s policy would hold up against strict scrutiny’s requirements that the law fulfill a ‘compelling interest’ and that it be ‘narrowly tailored.’ The city had not prepared a formal compelling interest claim because it had argued that the forum was nonpublic but the Court assumed that the city’s only argument would be the promotion of the city’s history.

Judge Lucero wrote an opinion dissenting from the Court’s decision not to hear the decision en banc. In his dissent, he argues that parks are not traditional public forums, but may or may not be designated public or nonpublic forums.

Judge McConnell wrote the more interesting of the two dissents in favor of rehearing. He argues that the Ten Commandments monument is a form of government speech and bases his decision in Van Orden (Supreme Court) and Wells v. City and County of Denver (Tenth Circuit.)

The cities were under no obligation to accept the statues, and could have objected to their content. When they accepted donation of the monuments and displayed them on public land, the
cities embraced the messages as their own. Similarly, Duchesne and Pleasant Grovecontrolled the placement of the statues, just as in Wells Denver bore ultimate responsibility for the content of the display.

If the Ten Commandments monument is deemed to be government speech, it becomes subject to a drastically different test than if it had been an instance of private speech in a particular forum.

In a rather surprising turn of events, Judge Tacha filed a response to the two opinions in favor of rehearing. I’m not sure of any other instance on a circuit court in which a judge, no less the Chief Judge, has filed a ‘response’ to a failed rehearing vote. In his response, he answers Judge McConnell’s government speech question:

To make government ownership of the physical vehicle for the speech a threshold question would turn essentially all government-funded speech into government speech. But this would be an absurd result. No one thinks The Great Gatsby is government speech just because a public school provides its students with the text. This is because the speech conveyed by the physical text remains private speech regardless of government ownership.

Briefs by the parties involved and amicus briefs will be filed throughout the summer and the Court is expected to hear the case in November or December.

Related posts

• Initial Thoughts on Ricci v. DeStefano (January 19, 2009)
• Initial Thoughts on Northwest Austin v. Mukasey (January 10, 2009)
• Initial Thoughts on Kennedy v. Louisiana (June 25, 2008)

“…the “F-word” is often used to express intense (and clearly nonsexual) feelings—even by political leaders. For example, Vice President Cheney’s retort of “Fuck yourself” to Sen. Patrick Leahy (D-Vt.) on the floor of the Senate chamber in 2004 was widely reported. See, e.g., Cheney Utters ‘F-Word’ in Heated Exchange With Leahy, THE FRONTRUNNER, June 25, 2004.

In a display of bipartisan understanding that the “‘F-Word’” has non-sexual meanings, Senator John Kerry explained his vote to authorize the use of force in Iraq by asking “Did I expect George Bush to fuck it up as badly as he did? I don’t think anybody did.” Will Dana, John Kerry’s Desperate Hours, ROLLING STONE, Dec. 25, 2003; see 32 also Michael Elliott & James Carney, First Stop, Iraq, TIME, Mar. 31, 2003, at 172 (quoting President Bush as saying to a group of U.S. Senators, “F___ Saddam. We’re taking him out.” (omission in original)).

These usages are not remotely “sexual”—and no viewer could reasonably view them to be. An administrative agency like the Commission cannot promulgate a legal standard that declares to the broadcast community that, “[i]n making indecency determinations, context is key,” In re Infinity Broad. Corp., 17 FCC Rcd 9892, 9895 (2002) , but then adopt a one-size-fits-all, per se rule that expressly disavows any contextual analysis of the meaning of the “‘F-Word.’”

While “shit” can refer to excrement or excretory function, it also can refer, “[i]n negative contexts,” to “anything.” IV OXFORD ENGLISH DICTIONARY SUPP. 124 (1972). It denotes “[r]ubbish, trash,” “[m]isfortune, unpleasantness,” or an “awkward predicament” (such as when “the shit. . . hits the fan”). Id. at 125. And bullshit has no excretory implications; it means simply “[r]ubbish, nonsense,” or “to bluff one’s way through (something) by talking nonsense.” I OXFORD ENGLISH DICTIONARY 645 (2d ed. 1989).

The “‘S-Word’” has non-excretory application in public discourse, as well. In July 2006, as reported in newspapers and aired on cable networks, President Bush remarked to British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this shit.” Peter Baker, Bush’s Bull Session: Loud and Clear, Chief, WASH. POST, July 18, 2006, at C1; see also, e.g., Transcript, CNN American Morning, LEXIS Transcript 071705CN.V74 (July 17, 2006). Surely no observer—not even the Commissioners—could believe the President was making reference to Hezbollah’s “excretory activities.”

Interesting…

Related posts

• Define profanity (October 24, 2008)
• BONG HITS 4 JESUS (May 6, 2007)
• Thoughts on Pleseant Grove v. Summum (April 11, 2008)

To use an example from Bertrand Russell that Posner mentions, a banner could in theory read “Quadruplicity drinks procrastination.” If that were the case, Deborah Morse could have conceivably taken up the banner. The Court almost surely would have ruled with Fredrick in this hypothetical case because nonsensical speech has always fallen under more content-neutral analysis. The court would have looked at the disruption that was caused by the banner and would have most likely found that there was insufficient disruption to warrant the restriction of free speech. The court in the real-life Morse largely rejected a content-neutral viewpoint and wasn’t ashamed to admit it. Posner summarizes his expert opinion on the subject:

In sum, from the observation that the banner contains a reference to smoking marijuana, and the false assumption that the banner must express a proposition, the Court has invalidly inferred a particular proposition. The slogan is in fact meaningless in the sense that it expresses no proposition, and Frederick gave a perfectly plausible explanation for the use of a meaningless slogan. The Court was therefore wrong in finding that the banner advocates the use of marijuana.

I’m not sure if Posner’s opinion strengthens the dissenting opinion written by Justice Stevens or the opinion authored by Justice Breyer concurring in judgement with the majority. I tend to align myself with Justice Breyer’s qualified immunity reasoning where he states that its impossible to know exactly what he meant or how people interpreted it, so Morse was justified in acting the way she initially felt or rather that she has the right to act the way that she did. The minority goes as far as to say that the banner absolutely was nonsensical and she went to far. I’d say Breyer is the winner here because Posner concedes that the banner almost certainly contains a reference to drugs but contains no explicit implications regarding the beneficial or harmful nature of those drugs. I also think Breyer wins here because I like Justice Breyer more than Justice Stevens, but please excuse my lack of content neutral analysis.

Related posts

• The People v. God, et al. (May 16, 2007)
• BONG HITS 4 JESUS (May 6, 2007)
• No More Bong Hits 4 Fredrick (June 25, 2007)

Five justices (Scalia, Kennedy, Thomas, Alito) signed on to the majority opinion written by Chief Justice Roberts. The majority opinion went after the controversial issue in this case- free speech.

The Chief Justice begins his opinion with a rather friendly reminder that “[o]ur cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” Tinker v. Des Moines (1969).” The court also delves into hipster slang:

At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits . . .”—a message equivalent, as Morse explained in her declara- tion, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.

They later move on to argue at great length that the school has the right to limit messages that go against its core academic purpose. One of the concluding paragraphs sums up the blatant viewpoint discrimination that the majority was partaking in.

School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.

Justice Breyer contends that it is necessary only to rule on the qualified immunity issue. The majority opinion addresses his arguments in footnote 1:

JUSTICE BREYER would rest decision on qualified immunity without reaching the underlying First Amendment question. The problem with this approach is the rather significant one that it is inadequate to decide the case before us. Qualified immunity shields public officials from money damages only. See Wood v. Strickland, 420 U. S. 308, 314, n. 6 (1975). In this case, Frederick asked not just for damages, but also for declaratory and injunctive relief. App. 13. JUSTICE BREYER’s proposed decision on qualified immunity grounds would dispose of the damages claims, but Frederick’s other claims would remain unaddressed. To get around that problem, JUSTICE BREYER hypothesizes that Frederick’s suspension—the target of his request for injunctive relief—“may well be justified on non-speech-related grounds.” See post, at 9. That hypothesis was never considered by the courts below, never raised by any of the parties, and is belied by the record, which nowhere suggests that the suspension would have been justified solely on non-speech-related grounds.

Justice Thomas writes an obscene concurring opinion that contends “the standard set forth in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969), is without basis in the Constitution.” If any of you don’t remember high school civics, Tinker was one of the first cases to uphold the rights of students in public schools. Here is how he supports his argument:

Although colonial schools were exclusively private, public education proliferated in the early 1800’s. By the time the States ratified the Fourteenth Amendment, public schools had become relatively common. If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. They did not.

Later…

In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.

I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.

Related posts

• BONG HITS 4 JESUS (May 6, 2007)
• The People v. God, et al. (May 16, 2007)
• Updated Humor Statistics (March 7, 2008)

On February 28, 2007, the Court heard oral arguments in Hein v. Freedom from Religon. The Freedom from Religion organization filed suit against Jay Hein, Director of the White House Office of Faith-Based Initiatives for supporting religious organizations in violation of the First Amendment’s Establishment Clause. The District Court threw out the case based on standing, and the Ninth circuit overruled, claiming that taxpayer money need only be ‘generally appropriated’ to the Executive branch to envoke standing under Flask.

In 1923, the Court held in Frothingham v. Mellon that simply being a taxpayer concerned about future tax increases was not sufficient standing to bring suit against Congress. A woman brought suit against the federal government for the Maternity Act of 1921 which provided funding to decrease infant mortality. The Court rejected the woman’s contention that Congress had overstepped its bounds- increasing taxes and unlawfully taking her property in violation of Due Process standards. (Sidenote: The Court’s decision in Frothingham is a short, interesting read. At one point, they cite the ill-fated Chisholm v. Georgia case.) The Court developed an exception in 1968 in Flast v. Cohen that taxpayers could have standing against very specific Establishment Clause issues if they meet two criteria:

(a) Taxpayers must establish a logical link between that status and the type of legislative enactment attacked, as it will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.

(b) Taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specific constitutional limitations on the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8.

A lot of the conflict in this case comes down to specific allocation of money. Hein claims that since the Executive is in question and has not directly appropriated any funds to this issue, there is no similarity to Flast and there is no controversy. Freedom from Religion claims that even the indirect allocation of money to the Executive for administrative tasks is enough to grant standing.

The petitioner argues that the respondent lacks standing because they have received no ‘direct dollars-and-cents injury.’ Flast rested on an individuals controversy over the government’s textbook-purchasing policy towards parochial school. That type of narrowly-defined controversy is justicible, but the plaintiff in this case hasn’t yet developed a very narrow scope for this case.

I’ll cover the oral arguments in this case soon, but in an unrelated sidenote, I’ve found the coolest surname ever. I was at my sister’s 7th grade band concert last night and I took a look at the flyer and there is a clarinetist with the last name of ‘Jurisprudencia.’ I’m jealous.

Related posts

• BONG HITS 4 JESUS (May 6, 2007)
• The People v. God, et al.: Scalia Never Stops Talking (Duh?) (May 17, 2007)
• Which Justice Will Author The Medellin Opinion? (March 19, 2008)

In 2002, the Olympic torch was paraded through the city of Juneau, Alaska. The school board of Juneau allowed students to be let out of class in order to take part in this historic occasion. Deborah Morse, the principal of Juneau-Douglas High School, supervised students as they were let out of class in order to watch the Olympic parade which was rolling through town. Joseph Fredrick, a high school student, went across the street with a few of his peers and unfurled a banner that read “BONG HITS 4 JESUS.” Morse first asked the student to put away the banner, and when he refused to do so, she grabbed the banner and told him to report to class. He refused and simply walked away. A few days later, he was summoned to her office and told that his banner had been offensive and violated a school policy against drugs. He gave sarcastic and mocking answers to the principal and she subsequently suspended him for 10 days for multiple infractions including truancy (he had skipped school on the day of the parade), disruptive behavior, and refusal to assist with an investigation along with the underlying display of offensive material. After the suspension was ordered, school officials noted the sudden appearance of messages and graffiti glorifying and mimicking Fredrick’s banner. The facts of the case are more important in this case than in most because the Justices call into question the actual disturbance that was created by unfurling a banner in this specific case.

The most notable case prior to this one about freedom of speech in school is Tinker v. Des Moines. In Tinker the Court held that students were within their rights to wear black arm bands in protest of the Vietnam War in school.

Representing Deborah Morse before the Supreme Court is Kenneth Starr of Whitewater fame. During arguments, Starr argues that this case is specifically about drugs, illicit substances, and the school’s right to enforce any policy concurrent to their general mission to discourage their use.

There were a few key issues in this case:

1) Free Speech versus Drug Use- Both Ken Starr and Edwin Kneedler (also on behalf of Morse) start their testimony with a declaration that this case is about the war on drugs in schools. Douglas Mertz, arguing on behalf of Fredrick, starts by saying ‘this is a case about free speech.’ I would be truly surprised if the opinions came down to the war on drugs.

2) Disruption- The biggest issue in this case is whether or not Fredrick’s banner created a ‘disruption.’ Justice Souter asks Starr if a disruption is caused by anything that “disagree[s] with official school policy.” Starr evades the question because it is clear that Fredrick did little more than that and and it is inconceivable that the Justices would accept such a broad definition. That type of definition could be used to justify a dangerously large swath of censorship in school.

Justice Souter had an interesting dialogue with Mr. Starr over the issue of the disruption:

… don’t we have to be more specific about the context in determining whether there’s disruption? If it’s a school trip to an art museum, unfurling a 15 foot banner in front of the pictures is clearly going to be disruptive of the object of the trip. Unfurling a banner in a classroom is going to be disruptive to the teaching of Shakespeare or whatever is supposed to be going on in there.
What we have here is the unfurling of a banner on a sidewalk in a crowd with kids throwing snowballs waiting for some — somebody to run by with a TV camera nearby. And there is a real question as to whether, it seems to me, as to whether it is in a kind of practical, real world sense, disruptive of anything. And if there is such a question, shouldn’t the answer favor the right to, to make the speech as opposed to favor the right to suppress it?

Justice Alito is particularly concerned about giving schools free reign to defend their ‘educational mission.’

3) Intent- Justices Souter and Ginsburg seem primarily concerned with the intent of Fredrick’s message. Justice Souter feels as though the message wasn’t necessarily inconsistent with current laws or even school policy. To him, Fredrick’s message was nothing more than ‘just a kid’s provocative statement.’ Justice Ginsburg goes so far as to suggest that this message may not have even advocated smoking pot. (See my post about Justice Ginsburg and Pot here)

4) Message v. Banner- I wasn’t exactly sure how to label this idea, but at the center of the debate is the question of whether Fredrick was in trouble strictly because of the message he displayed or the act of displaying a 14-foot banner.

Starr makes it very clear that the central focus of the case is not about unfurling a banner, but instead about the message present on that banner. He contends that there is nothing inherently problematic about unfurling a 14-foot banner, but at the same time he argues that a teacher can ban the unfurling of banners because they could be disruptive. This notion is surprising to few of the Justices including Justices Scalia, Stevens, and Breyer.

5) Qualified Immunity- Qualified Immunity is the idea that certain individuals deserve “qualified immunity” from litigation as long as they are doing what they legitimately consider to be an enforcement of the law and their actions can be considered reasonable. I think the one issue that could swing this case in favor of Principal Morse is Fredrick’s search for compensation. Chief Justice Roberts seems concerned about the chilling effect that would certainly arise from precedent that allows for school officials to be forced to personally pay for reasonable actions. The Court doesn’t give much time to the issue of qualified immunity, it seems like this point is a given.

6) Deference to Educators- Starr also argues that a lot of these arguments come down to the split-second decision of educators in the real world. Principal Morse could have reasonably believed that Fredrick’s banner would be disruptive and meant to advocate breaking the law. The idea of deference to educators is tied very closely to the idea that educators shouldn’t have to pay for their actions when they are considered reasonable.

7) Content Neutrality- During Mertz’s oral arguments, the Court talks extensively about content neutrality. Mertz argues that schools must maintain content neutral rules regarding free speech, ie. if a kid can say that drugs are for idiots the school must allow a kid to say that all the cool kids are doing drugs. I tend to disagree with that idea (and so does Justie Scalia.) Scalia says that schools are supposed to be places where we instill good moral values in our kids, and pot is, by some standards, not one of the things we want our kids to be doing.

- – -

It looks like Justice Scalia rejects the notion that Fredrick’s speech was political. He defends Starr when Justice Souter starts cornering him with a very narrow (and particularly incriminating) hypothetical scenario. It looks like Scalia is drawing a distinction between speech which calls for a change in the laws and speech which incites unlawful behavior.

At one point in the oral arguments (page 13 for my edition) an interesting dialogue takes place between Justice Scalia and Mr. Starr. Justice Scalia says that he is willing to rule very simply on this case, holding that students may not call for breaking the law in school. Starr says that type of restriction could be too stifling and he lists the Dr. Martin Luther King, Jr and civil disobedience as some of the things that would be restricted by such a ruling.

Justice Scalia goes off the proverbial deep-end during his dialogue with Mr. Mertz, the advocate for Fredrick. Scalia questions whether or not a school has to put up with a viewpoint that is ‘undermining’ the school’s legitimate viewpoint. Mertz says that a school must put up with a viewpoint countering its own so long as that viewpoint does not interfere with the school’s right to teach its own. Justice Kennedy counters with a silly hypothetical about a badge that says ‘Rape Is Fun.’ Mertz obviously deflects this hypothetical as speech that is subject to review under a totally different section of First Amendment jurisprudence as hate speech and speech advocating violence. Scalia doesn’t seem to get the difference.

Justice Scalia suggests that there are two main types of ‘disruption’ in this case. The first is the inability to teach in a classroom, the other is the undermining of an educational mission. He suggests that we use the word ‘undermining’ with reference to the second class of disruption. Mertz rejects the pejorative term and says that we should call it ‘allowing competing viewpoints.’ Justice Scalia then presents the most absurd hypothetical that I have ever heard in my life. This post is already getting too long, so I’ll just tell you to read page 40 of the Oral Arguments. Total Madness.

Chief Justice Roberts is concerned about how broadly we should read Tinker. He finds it unnecessary to adhere to Tinker in a classroom setting where the teacher’s agenda outweighs the student’s agenda. I suspect the Chief will rule with the Principal.

Justice Souter is going to come down on the side of Fredrick. It looks like he feels that any possible ‘disruption’ needs to be taken in context.

Justice Breyer knows that this kid was making a joke. He will rule in favor of Fredrick.

I have no idea how I would rule on this case. Actually, in writing this post I actually wrote one opinion, then wrote the opposite one because I thought I was wrong the first time. I found an old copy of the first draft. Here they are:

My belief is that from a free speech perspective, Fredrick was not protected by the First Amendment. It cannot be reasonably argued that Fredrick created a physical disruption to the school but his message was ultimately contradictory to the ‘educational mission’ of the school. For me it comes down to the fact that, as a recent high school graduate, if a student had put up a sign that said BONG HITS 4 JESUS during some sort of meeting outside, there would be no way to interpret that except as a blatant method of subverting the school’s mission to discourage drug use. Regardless of whether drug use is good or bad, that type of message does not have to be tolerated by school officials during an explicitly school function. A ruling that allows students to inject their own message into an event that has an explicit purpose would lead to dangerous precedent that would weaken school administrators to a dangerous level. If free speech issues weren’t enough, why should a principal be subject to litigation based on what a reasonable action to enforce a reasonable regulation? I would call this a slippery slope, but I’m concerned that calling it that would be a fatal understatement.

My belief is that from a free speech perspective, Fredrick was protected by the First Amendment. It cannot be reasonably argued that Fredrick created a physical disruption to the school and his message was not explicitly contradictory to the ‘educational mission’ of the school. The actual intent of the sign is unclear, and when such grey area is present, it is necessary that the Court fall on the side of First Amendment protection. The record is conflicting when it comes to the actual level of school intervention present during the assembly outside. The school cannot reasonably be allowed to censor all speech that runs contradictory to its broad educational message. Justice Scalia doesn’t find a difference between expressing pro-marijuana views and expressing pro-rape views, but there is one. Pro-marijuana views are unlikely to cause a serious disturbance in schools and I can see no reason why they would not receive political speech protection under Tinker. If Fredrick had not been a student, there is no doubt that he would have been able to hold that sign up in the exact same scenario. Why does he lose his rights just because he is a citizen and a student?

Whether Fredrick’s speech was protected by the First Amendment or not, he could very conceivably lose if the Court becomes too concerned about the qualified immunity issue.

My loose prediction: Roberts, Scalia, Thomas, Kennedy for the principal. Ginsburg, Alito, Stevens, Breyer, Souter for the kid. I could see Breyer swinging over the the principal based on the scope of the decision, but I don’t think Alito will follow suit.

UPDATE: If you’ve read this far down the post, I salute you. Also, if anyone wants an idea for a birthday present for me (October 1,) I’d love a 14-foot banner that says BONG HITS 4 JESUS. I’ll put it right beside my Constitution.

Related posts

• Unity Defined (June 11, 2007)
• The People v. God, et al. (May 16, 2007)
• Supreme Introductions (December 20, 2008)

The Court established what is now known as the Lemon Test in the 1971 case Lemon v. Kurtzman. It reads:

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. 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(internal quotations omitted)

The state legislature very carefully phrased their legislation to indicate only a secular legislative purpose. The Court has long held that intent grossly outweighs the technical wording, but the legislature has taken the necessary precautions to reasonably argue this prong of the test. The state can also argue that offering these classes merely offer information on a class and neither ‘advance nor inhibit’ religion. There are very few interpretations of this legislation that can pass the final prong of this test, the ‘excessive entanglement’ portion. There is no way for a school to offer a course on the Bible without necessarily having to teach one view of it over another. Even on minute details, schools would be forced to teach one view over another, forcing the government to become a proponent of one religious view over another.

The 1992 case Lee v. Weisman offers a similar conclusion. In Lee, the principal of a school invited a Rabbi to offer prayer at a school’s graduation ceremony. The Court ruled this ‘subtle coercive pressure’ to be in violation of the 1st Amendment’s free practice clause. Here is an excerpt from the opinion:

The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the Rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

A prayer during a commencement ceremony and an optional class have important differences- the former is significantly more of an imposition on an unwilling student. Whatever the differences may be, both place social pressure on students to conform to a standard that the school is promoting.

You can track this legislation here.

Related posts

• Thoughts on Pleseant Grove v. Summum (April 11, 2008)
• The People v. God, et al. (May 16, 2007)
• Supreme Court Grants Review in Animal Cruelty/First Amendment Case (April 20, 2009)