On public prayer

Yesterday the Supreme Court upheld a ruling allowing the town of Greece, NY, to open city council meetings with prayer. In an article on National Review Online, Kevin D. Williamson discusses the common sense approach of the majority of the Court, as well as the phenomenon of “evangelical atheism.”

The vandals have lost one at the Supreme Court. The psalmist surely did not have Anthony Kennedy in mind when he proclaimed “Let the daughters of Judah rejoice because of thy judgments,” but the trumpets should sound any and every time Madalyn Murray O’Hair’s grubby little cult suffers a political defeat.

The case was Town of Greece, N.Y. v. Susan Galloway et al., and the question was whether the town fathers of a Rochester suburb you’ve never heard of were doing violence to the Bill of Rights by allowing citizens and clergymen to lead prayers before meetings of the town board.

The plaintiffs in the case were Susan Galloway, a Jewish woman who describes her history of activism as beginning with a refusal to sing Christmas carols as a junior-high student, and Linda Stevens, a retired public-school functionary and atheist who served in the august position of president of the Greater Rochester Chapter of the National Organization for Women and as vice president of Americans United for Separation of Church and State. Ms. Stevens complained that the overwhelmingly Christian character of the locals’ prayers made her feel like she would “stick out,” and so, naturally enough, she filed a lawsuit, apparently immune to the irony that her response to what she perceived as a situation encouraging conformity through social pressure was to seek federal action mandating conformity at gunpoint.

Justice Clarence Thomas’ opinion relied on very plain reading of the Constitution’s Establishment Clause:

Justice Clarence Thomas, who has done the people of this country a magnificent service over the years by restraining his imagination and boring us all to death with the letter of the law, noted in his concurrence that the First Amendment is a constraint upon Congress, not upon the township of Greece, N.Y.; that it explicitly permits not only the encouragement of religious belief but the actual establishment of churches at the state and local level; that the men who wrote the First Amendment and who fought in the Revolution did not seem to believe that the Bill of Rights was in conflict with Massachusetts’s deciding to have an established Congregationalist church or with Pennsylvania’s choosing not to establish any church, in deference to the nonconforming sensibilities of its Quaker-dominated public culture, but rather that the First Amendment ensured that the federal government was bound to permit either outcome; and, finally, that even if the “no establishment” rule were to be applied to Greece, N.Y., permitting the offering of prayers before a board meeting is not the same thing as establishing a church. An established church is a government-supported ministry paid for by tax dollars, not a social convention that makes the local NOW president feel like she sticks out, which experience with that organization suggests she very well may under many diverse circumstances.


Not safe to display American flag in American high school?

Via The Volokh Conspiracy, now at The Washington Post.

On May 5, 2010, a group of students were told by the administration at Live Oaks High School in California that they could not wear shirts displaying the US flag; they were told to remove the shirts, turn them inside out, or go home, for their own safety. Apparently there were other students at the school who were offended by the American flag on Cinco de Mayo. Indeed, there had been an incident the previous year involving threatened violence against students displaying the American flag, and the 2010 group were later threatened by text message and telephone.

A lawsuit against the school district ensued, and yesterday the 9th Circuit Court of Appeals upheld the school’s decision to forbid wearing the US flag on Cinco de Mayo (Dariano v. Morgan Hill Unified School Dist. .

The court points out that the rights of students in public high schools are limited — under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. And on the facts of this case, the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption.

From the Court’s decision:
Here, both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real. We hold that school officials, namely Rodriguez[the school’s assistant principal], did not act unconstitutionally, under either the First Amendment or Article I, § 2(a) of the California Constitution, in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.

Professor Volokh:
This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker‘s “forecast substantial disruption” test, such a heckler’s veto is indeed allowed.

Yet even if the judges are right, the situation in the school seems very bad. Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.
And this is especially so because behavior that gets rewarded gets repeated.

Divided America

A win for freedom of religion

Catholic groups have been fighting the HHS contraception mandate provision, a regulation written for the Affordable Care Act, and there have been numerous court cases with various results. Now a federal judge in New York has ruled that the mandate forces the Catholic Church and its associated organizations to curtail religious expression; the judge’s ruling enjoins the HHS from enforcing the mandate.

I am not Catholic, and I do not ascribe to the idea that the Bible prohibits contraception, but I applaud the court’s ruling. This is a victory for all religions, faiths and denominations.