Blaine Amendments–Friends or Foes of the Constitution? The Impact of Trinity Lutheran Church of Columbia v. Comer

by Kayla Rowsey, Staff Member (Vol. 16)
November 29, 2017

Ah, yes—playgrounds. Definitely the forum we all had in mind for presenting such a divisive Establishment Clause issue to the Supreme Court. Let’s figure out how we got here.

Missouri has a clause in its state constitution, commonly known as a Blaine Amendment, which forbids the allocation of public funds to any church, religious organization/figure, or religious school/university. Additionally, it prohibits the donation of real estate and personal property by the state. It does not consider whether or not the funding would be used for a secular purpose.

In 1875, Representative James G. Blaine proposed an amendment to the U.S. Constitution with the goal of taking the Establishment Clause a step further. Specifically, the amendment sought to prohibit state funds from going to religious schools. Many believe the Anti-Catholicism movement and other nativist sentiments motivated this, as the Catholic Church taught many immigrant children.

The amendment failed, but many states still passed their own Blaine Amendments for similar reasons. Ultimately, these once questionable motives have seemingly transformed into arguments over protecting the separation of church and state. Currently, thirty-five states have Blaine Amendments in their state constitutions. After Trinity Lutheran, however, the future of these amendments is likely to be called into question.

The Trinity Lutheran conflict arose from Missouri’s denial of state funding for scrap tire surface material for a playground. Missouri’s rationale for its decision was based solely on the fact that Trinity Lutheran Church was a religious institution. The state relied on its Blaine Amendment, which explicitly prohibits “aid[ing] any church.”

The Supreme Court rejected this argument and ruled that Missouri had violated the Free Exercise Clause. The Court had previously held that laws denying “an otherwise available benefit because of religious status are unconstitutional.” However, “neutral” and “generally applicable” laws can be upheld despite some unintentional interference with religion.

States do not need to explicitly inhibit an organization’s ability to practice religion to violate the Free Exercise Clause. Rather, more discrete forms of discrimination with “laws that burden religious practice” are also analyzed under strict scrutiny, which requires that a law “further a ‘compelling governmental interest’” but also be “narrowly tailored.”

Here, the church was not allowed to “compete for a benefit that is otherwise available to all secular organizations.” The Blaine Amendment based classifications on religious affiliation and denied an “otherwise eligible organization” the opportunity to apply for funding. This constituted a discriminatory policy, and Missouri’s interest in utilizing measures beyond the Establishment Clause to avert any divergence was not a “sufficiently compelling interest.”

It would appear to be a pretty clear decision. However, footnote 3 complicates matters. There, the Court said, “[w]e do not address religious uses of funding or other forms of discrimination.” With this footnote, the Court limited its holding to the particular facts of the case and refused to address the overarching issue.

The most telling part of the opinion was that four justices did not join in footnote 3, and among them, their different approaches were striking. On one hand, Justice Thomas and Justice Gorsuch concurred in part, agreeing with the opinion overall but differing on two points.

First, they rejected the idea of a “distinction . . . drawn between laws that discriminate on the basis of religious status and religious use.” They concluded that this was an unworkable and unstable approach, and that the distinction would “blur[] in much the same way the line between acts and omissions can blur.”

Additionally, they questioned why the Free Exercise Clause was even at issue. The government cannot “force people to choose between participation in a public program and their right to free exercise of religion.” So, it did not matter if we defined something as a status or use because “it is free exercise either way.”

Their second contention was their disagreement with footnote 3. While it was “entirely correct” in their opinion, they rejected the inference that this was limiting the holding of the case. They suggested their cases are “governed by general principles, rather than ad hoc improvisations”—meaning, “the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”

Justice Sotomayor and Justice Ginsburg’s dissent, however, suggested this limitation “does not resolve this case”—that this was not just about “resurfac[ing] a playground,” but the “relationship . . . between church and state.” Despite footnote 3’s limitation, they argued that the Court held “that the Constitution required the government to provide public funds directly to a church.”

The dissent contended that the Court misunderstood the facts, breaking away from precedent and history, finding this obligation “for the first time.” This decision therefore “weak[ens] this country’s longstanding commitment to a separation of church and state beneficial to both.” The dissent was worried about the implications of this case in the future, possibly being the first step in dismantling the Establishment Clause.

They also highlighted that public funding of religious institutions, while previously upheld, has only been granted when used for secular purposes. Here, there were no such “assurances” by the church—to the contrary, it was clear that Trinity Lutheran used the playground “in conjunction with its religious mission.” The Establishment Clause would certainly bar Missouri from funding this project.

Also, the Court had always upheld distinctions based on “religious ‘status’” if the “interest in the Religion Clauses” justified them. According to the dissent, Missouri’s Blaine Amendment did just that.

This leaves us with no clear answer on what the future is for Blaine Amendments or the relationship between the Establishment and Free Exercise Clauses. Depending on the makeup of the Court, there could be a new approach to the separation of church and state.

Could the policy preferences of a majority of the states be invalidated with the more deferential approach that disfavors any “discrimination” toward religion? Or could the logic of the Blaine Amendments prevail, creating an even stricter division between the two?

A Political Playground: Trinity, Choices, and the Separation of Church and State

By Tyra Pearson, Staff Member (Vol. 16)
November 3, 2017

In light of the recent Supreme Court decision, many Americans are beginning to think that the idea of “separation of church and state” is in jeopardy. In Trinity Lutheran Church v. Comer, the Court ruled a Missouri program denying funding to religious groups as unconstitutional under the First Amendment, even though that funding would not be for religious purposes.  Some are saying that the Supreme Court, in its decision to invalidate this state law, upset the idea of “separation of church and state” and dramatically changed the interpretation of the First Amendment. The question is whether this is a legitimate concern. I argue that it certainly is. The Court’s decision in late July is unprecedented and left many states scratching their heads, wondering when they are allowed to prohibit funding to a religious entity and not violate the First Amendment.

The Missouri Department of Natural Resources (“Department”) offers state grants to help private and public schools, as well as nonprofit entities, purchase rubber playground surfaces. The Trinity Lutheran Church (“Trinity”) applied for this grant in order to resurface the preschool and day care center grounds. However, the Department had a policy of disqualifying religious organizations from receiving this grant. When Trinity applied for the grant, it was ranked “fifth among the 44 applicants,” based on the Department’s proscribed criteria, including population poverty level and the applicant’s plan to promote recycling. However, despite high scores, the Department declared Trinity ineligible under the rationale that Article 1, section 7 of the Missouri Constitution prohibited the Department from offering the grant to Trinity. Before the Supreme Court, Trinity argued that the Department’s failure to approve Trinity’s application violated the Free Exercise Clause of the First Amendment.

The Court agreed with Trinity. Chief Justice Roberts, writing for the Court, looked to precedent to support the Court’s reasoning. First, he compared it to a previous Supreme Court decision, McDaniel v. Paty. In this case, the Court struck down a Tennessee law under the Free Exercise Clause. This law banned ministers from serving in elected office solely because of their status as ministers, thus impairing their free exercise of religion. Roberts stated that the Department’s policy is analogous to McDaniel because the policy discriminates against the church by disqualifying Trinity from the grant solely because of its status as a church.

The Court then distinguished this case from Locke v. Davey. In Locke, the state of Washington formulated a scholarship that allowed recipients to use the monetary award for post-secondary schooling. However, students were not permitted to use the money to pursue a devotional theology career. The Court ruled that the state did not violate the First Amendment because the plaintiff was not denied a scholarship because of who he was, but because of “what he proposed to do.” He was going to use the funds in his preparation for future ministry. Roberts stated that this case is different: in Trinity, the Department is denying the church funding because it is a church, and not because of what it intends to do with the funds.

In Trinity, it looks like the Court’s decision turned on the use of the funds.  However, two dissenting justices, Sotomayor and Ginsburg, did not agree with the Court’s holding or reasoning. They believe that the Court made a mistake by making this case simply about resurfacing the playground. They asserted that this case is about the relationship between the church and state; and through its decision, the Court has altered that relationship. Sotomayor argued that funding a house of worship underwrites religious exercise in violation of the Establishment Clause.

We cannot disregard Sotomayor’s and Ginsburg’s concerns. They are afraid that this holding will allow states to use the Court’s rationale to promote religious institutions, which would lead down the slippery slope of a governmentally established religion. Ultimately, states should be allowed to prohibit funding to religious institutions in order to make it clear to their constituents that the government is not favoring a particular religion. Yes, the majority and Trinity say a playground is secular in itself; however, the playground “serves as a ‘ministry to the Church and incorporates daily religion and developmentally appropriate activities.” The church is using the playground to further its religious mission by allowing “children to grow spiritually, physically, socially and cognitively.” Thus, the playground surface is “integrated with and integral” to Trinity’s mission and as a result no longer carries the status of being secular.

For example, the act of using nails is nonreligious in itself; however, a church can use these nails to build an altar, which is no longer secular. The Court’s opinion does not qualify its decision by stating that Trinity cannot ever use the playground for religious purposes. One day if the church is too crowded or if the congregation wants a change of scenery, Trinity could use this playground to hold religious services and teachings. Nothing in the majority’s opinion prohibits it. The Court ultimately cannot predict what these religious entities will do. What seems now to be nonreligious could be anything but.

This decision will likely open the door to more expensive and needless litigation. The Court does not give any guidelines on how to determine whether or not public funding given to these institutions will be put to improper religious use. States will be required to perform a deeper and longer analysis of each application, which can be costly and cause undue delay for nonreligious entities that are in need of this funding. Footnote 3 of the opinion does seem to limit the Court’s decision to discrimination “based on religious identity with respect to playground resurfacing” and not other forms of discrimination. However, the court does not give guidelines or examples to what forms of discrimination are permitted. The problem still remains and states are left wondering under what circumstances is a state’s interest in remaining secular given priority. For these reasons, I agree with the dissent. For the purposes of protecting the integrity of the First Amendment and the court system from a flood of cases, we should not allow states to fund religious institutions.

President Trump Promised to “Totally Destroy” the Johnson Amendment: Did He?

By Trey Bright, Staff Member (Vol. 16)
October 11, 2017

On February 2, 2017, President of the United States, Donald J. Trump, delivered a speech at the National Prayer Breakfast in Washington, D.C. in which he doubled down on the GOP platform’s commitment to expanding the First Amendment rights of houses of worship. President Trump assured the audience of religious leaders that he would make good on his campaign promise to “totally destroy” the Johnson amendment, a provision of the U.S. tax code, which allows “our representatives of faith to speak freely and without fear of retribution.”

What is the Johnson Amendment?

Following President Trump’s speech, The New York Times  described the Johnson Amendment as:

[O]ne of the brightest lines in the legal separation between religion and politics. Under the provision, which was made in 1954, tax-exempt entities like churches and charitable organizations are unable to directly or indirectly participate in any political campaign on behalf of, or in opposition to, any candidate. Specifically, ministers are restricted from endorsing or opposing candidates from the pulpit. If they do, they risk losing their tax-exempt status.

Controversy and Questions of Constitutionality

Following President Trump’s remarks, talks of an executive order, proposed legislation, and the impacts that each could have began to swirl throughout Washington. Accompanying this dialogue was a mixed array of support, concern, and questions of constitutionality.

Proponents of the efforts to repeal the Johnson Amendment argue that it violates the First Amendment protections of free speech and free exercise afforded to houses of worship – though the courts have disagreed on this point for more than half a century. Meanwhile, opponents of the efforts to repeal fear that it could encourage the creation of sham nonprofits to funnel money into politics and corrupt the very purpose of churches.

Talks of the proposed repeal raised serious concerns over its impact on the separation of church and state doctrine; but concerns of this type of Establishment Clause violation are largely dependent upon the substance of the policy itself.

In Walz v. Tax Commission of the City of New York, the Supreme Court established that a tax exemption equally available to both secular and religious nonprofit organizations did not violate the Establishment Clause. Further, the Walz Court suggested that such an exemption strictly for religious organizations would be an impermissible religious preference in violation of the Constitution. Similarly, this sort of naked preference for religious groups was held to be a violation of the Establishment Clause in Texas Monthly, Inc. v. Bullock, where the Court struck down a Texas statute exempting only religious publications from state sales taxes.

Under this line of case law, it is clear that a repeal of the Johnson Amendment only as it pertains to restricting the political activities of religious organizations would be held unconstitutional. That being said, were the repeal to apply to nonprofits across the board, it would be constitutionally acceptable – proposing only a question of policy.

The Executive Order

Some thought a more clear answer as to how a repeal would be implemented would be addressed on May 4, 2017, as President Trump signed an executive order in the White House Rose Garden amidst a crowd of activists and religious leaders. As he signed, the president promised that the order would “prevent the Johnson Amendment from interfering with your First Amendment rights.” However, despite this promise and the aforementioned vow to “totally destroy” the Johnson Amendment, key questions remained unanswered.

Attorneys for the American Civil Liberties Union (ACLU) and the Human Rights Campaign expressed a plan to immediately challenge the executive order. The organizations feared that the order would undermine women’s health care in the name of religion and could enable religious discrimination. But upon release of the order, the need for such challenges came into question as activists from both ends of the spectrum suggested that the executive order did little to nothing of substance. In fact, the ACLU went as far as to say that the signing of the order was simply “an elaborate photo-op with no discernible policy outcome.”

The executive order vaguely reads: “to the extent permitted by law,” the Department of the Treasury is not to take adverse action against any individual or religious organization on the basis of speech about political issues where similar speech has, “consistent with law,” not ordinarily been treated as participation on behalf of or against a candidate in a political campaign. In other words, the executive order is essentially legalese for “carry on.”

Even conservative groups expressed their disappointment with the executive order, appreciating the symbolism and the optics but acknowledging that the vague language of the order leaves President Trump’s campaign promise unfulfilled.

What’s Next?

Of course, the lackluster executive order isn’t the end of the debate over the Johnson Amendment. President Trump, and others in the Republican leadership, have suggested that a Congressional act on the subject is forthcoming. In any case, if conservatives are to legitimately make good on their promise to repeal the Johnson Amendment, they clearly have more to do and must do so without imposing the sort of naked religious preference mentioned herein.

Senate Bill 2 and the Establishment Clause

by Hillary Li, Staff Member (Vol. 14)
May 25, 2016

“This is a sad day for North Carolina that history will not judge kindly,” Sarah Preston, the acting executive director of the ACLU of North Carolina said in a statement released on June 11, 2015 . That was the day the North Carolina House of Representatives (the “House”) voted to override Governor Pat McCrory’s veto of Senate Bill 2 (“S.B. 2”), officially making the bill law. The new law permits certain government officials to recuse themselves from performing marriage ceremonies based on their religious beliefs.

Advocacy groups and Representatives who voted against S.B. 2 fear the law will have a negative impact on same-sex couples. Notably, government officials may abstain from performing ceremonies at any time, even the moment they are approached by a couple. Additionally, in smaller counties with only a few magistrates, the concern is that all available officials will recuse themselves. This concern became a reality in McDowell County, as all four magistrates in the county recused themselves, requiring neighboring magistrates to drive in to assist with marriage ceremonies. What’s more, as of September 11, 2015, 32 magistrates in North Carolina had recused themselves under Senate Bill 2. No formal lawsuits have been filed challenging the bill, but advocacy organizations like the ACLU of NC have encouraged any couples that have encountered hurdles to contact their office.

While the new law is not facially discriminatory, because it does not explicitly discriminate against same-sex couples, it directly implicates the Establishment Clause. The First Amendment provides that, “Congress shall make no law respecting an establishment of religion,” and S.B. 2 expressly permits government actors to abdicate their duties based on religious objection.

S.B. 2

Senate Bill 2, first filed in the Senate in January 2015 by Senate Pro Tempore Philip Berger (R-N.C.), allows magistrates, assistant registers of deeds, and deputy registers of deeds to legally recuse themselves from performing marriage ceremonies “due to sincerely held religious objection[s].” S.B. 2, 2014-2015 Gen. Assemb. (N.C. 2015) (codified in N.C. Gen. Stat. §§51-5.5, 14-230, 161-27, 7A-292). Once an official recuses him or herself, the recusal is in effect for at least six months, and the official may not perform any marriages until the recusal is rescinded in writing.  In the event that all magistrates in a jurisdiction have recused themselves, the Administrative Office of the Courts shall ensure that a magistrate is available to perform marriages at least “10 hours per week, over at least three business days per week.” N.C. Gen. Stat. §7A-292(b)(2015).

S.B. 2 was passed by both chambers of the General Assembly, but when it landed on Governor McCrory’s desk on May 29, 2015, he vetoed it. However, a couple days later, the Senate voted to override the veto. The House of Representatives waited a couple sessions to vote on it. As the House vote came out to 69-41 on June 11, it was only 3 votes over the 3/5 majority required. Ten House members were absent , including several Democratic representatives whose votes likely would have changed the outcome. Many advocacy groups were reminded of the “ veto garage ” approach popularized by former speaker Thom Tillis, which entailed leaving vetoed bills in committees for future votes. The approach has been characterized asunfair , but has never been challenged in court.

Advocacy groups released many statements protesting the passage of the bill. Reverend Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality , said “[w]e’re extremely disappointed that the legislators passed this bill, which is clearly discriminatory. Today we saw the Legislature move forward with a transparent anti-gay agenda. It is unconstitutional and won’t stand up in court.” Representatives in the General Assembly chimed in as well. “This was legislation by ambush and we continue to have to resort to the court to defend the rights of our citizens because our legislature fails to do so,” House Democratic Leader Larry Hall said.

The Lemon Test

In 1971, the Supreme Court established the Lemon test to determine whether a law passes scrutiny under the Establishment Clause, which applies to S.B. 2. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Under the Lemon test, to pass Establishment Clause scrutiny, the government’s law must: (1) have a valid secular purpose, (2) not have “the principal or primary effect” of either “advancing or inhibiting religion,” and (3) not create “an excessive government entanglement with religion.” If any of these prongs is violated, the government’s action is deemed unconstitutional. The prongs have been clarified and applied in many cases since then.See, e.g., Lynch v. Donnelly, 465 U.S. 668, 694 (1984); Lee v. Weisman, 505 U.S. 577, 585 (1992).

Some may argue that the Lemon test is outdated because of a changing social environment around religious freedom. There have been cases that approached Establishment Clause questions with tests other than the Lemon test. See, e.g. Bormuth v. Cnty. of Jackson, __ F.Supp.3d __, 6 (2015) (using a fact-sensitive inquiry looking at whether the government act was “psycho-coercive” instead of the Lemon test because an act that fails the coercion test would also necessarily fail the Lemontest). In addition, some Supreme Court Justices have expressed their criticisms of the use of the test in certain situations. See, e.g.Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring) (calling the LemonTest “some ghoul in a late-night horror movie”). Despite this, the Court has never invalidated the test, and lower courts across the country consistently apply it to Establishment Clause cases. In fact, the test was still applied in cases as recently as September 2015. See, e.g. Robinson v. Cate, No. 2:11-cv-02555, 2015 WL 5326199 (E.D. Cal. Sept. 9, 2015); Jewish People for the Betterment of Westhampton Beach v. Vill. Of Westhampton Beach, 778 F.3d 390 (2015). Though it was created in 1971,Lemon is still the main test used by courts when considering Establishment Clause claims, particularly when considering “situations in which the government has allegedly acted to assist an existing religious group.”Amos v. Stolzer, No. 1:14CV63, 2014 WL 6473596, at 5* (E.D. Mo. Nov. 18, 2014).

S.B. 2 Fails Lemon Test

Senate Bill 2 violates all three prongs of the Lemon test. First, S. B. 2 lacks any valid secular purpose. The intent behind the law was to “protect sincerely held religious beliefs,” as stated by House Speaker Tim Moore, which indicates that it intentionally promotes religion to community members, including government officials, couples who want to get married, and other entities involved. It is unrelated to any economic, political, or social motivations that could be deemed unrelated to religion.

Second, the law’s primary effect is to “advance religion.” The officials identified in the bill are government officials, so by allowing them to refrain, based on their religious beliefs, from performing their duties, the bill is promoting religion by the state. It is not merely accommodating religious objections as permitted under Title VII ; it is prioritizing individual religious beliefs over a federal constitutional duty to issue marriage licenses and perform governmental duties. This advances religion over state responsibilities.

Third, Senate Bill 2 creates an “excessive government entanglement with religion.” The government made a law that is explicitly creating an exemption based on religious beliefs, which “invites and encourages” religion to become a part of the job description of state officials. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 306 (2000). There is no way to separate the government job from the religious exemption; they essentially overlap. The law fails the Lemon Test, and should be deemed unconstitutional under the Establishment Clause.

Recent Lawsuit

In December 2015, six plaintiffs filed a federal lawsuit challenging Senate Bill 2 under the Establishment Clause, as well as the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The plaintiffs are three couples who live in different counties in North Carolina. While none of them have been specifically denied access to a marriage because of Senate Bill 2, they claim standing in this suit because they are state taxpayers challenging a specific state law that authorizes public spending for an expressed religious purpose. The outcome of the lawsuit could not only repeal Senate Bill 2, but also speak to the balance between religious freedom and government protections and clarify the federal government’s stance on the Establishment Clause.

 

ACA’s Contraception Mandate Likely Headed to the Supreme Court

By Melanie A. Stratton Lopez, Staff Member (Vol. 11)
April 7, 2013

In 2010 Congress passed the Patient Protection and Affordable Care Act (ACA). The ACA was passed in order to increase overall heath care access and preventative health care services to millions of Americans. One such preventive health care requirement is that all private employer and group sponsored health insurance plans must include all FDA approved contraception at no cost to the employee or individual.

While the ACA provides for a religious employer exception, religious for-profit employers are not exempted and must provide birth control coverage for their employees. Religious leaders and private business owners argue that the definition of a “religious employer” is too narrow and therefore limits their free exercise of religion.

Over the past year, The Beckett Fund, a nonprofit and public-interest group dedicated to the free expression of all faiths, has filed over 53 lawsuits against the Department of Health and Human Services claiming that the contraception mandate violates their religious freedom under the Religious Free Restoration Act (RFRA) and the First Amendment. The Free Exercise Clause of the First Amendment states that Congress may not make a law “prohibiting the free exercise” of religion. In 1990 the Supreme Court held that free exercise cases should be reviewed under rational basis review and not strict scrutiny. In response to this lower bar, Congress passed RFRA in 1993, prohibiting the government from imposing a substantial burden on the free exercise of religion unless there is a compelling government interest and the government imposes the law in the least restrictive way possible. Different Circuits have come to different conclusions as to whether or not the contraception mandate “substantially burdens” employers and if preventative care is a “compelling governmental interest.”

As the Christian Science Monitor notes, legal scholars believe that the contraception mandate is heading to the Supreme Court because of a recent split among the Circuit Courts as to whether the contraception mandate imposes a substantial burden upon a private employer’s free exercise of religion. Government attorneys for the Department of Justice argue that a private employer cannot exercise religion, and rely heavily on Justice Scalia’s opinion in Lyng v. Northwest Indian Cemetery Protective Association where he stated, “Any society would be courting anarchy,” if people were free to ignore a “valid and neutral law … on the ground that [it] prescribes conduct that his religion proscribes.”

Additionally, women’s health advocates believe that the Beckett Fund cases are unlikely to succeed, as the health care law is a facially neutral law that is generally applicable. Health care advocates also contend that RFRA should not control because “neither providing health insurance, nor engaging in sexual intercourse without contraception, constitute religious exercise.” Ultimately, this issue is likely to be hashed out in the Supreme Court. In the meantime, female employees at Dominoes, Hobby Lobby and religious universities are unable to receive free contraception through their insurance plans.

The Push for Prayer in Public Schools

By Amanda R. Witzke, Staff Member (Vol. 11)
March 17, 2013

After decades of removing religious influences from the public school forum, the United States has seen a surging political movement in several state legislatures attempting to bring prayer back onto school grounds. Since the landmark Supreme Court decision in Engel v. Vitale in 1962 declaring school-sponsored religious activities such as prayer unconstitutional until the Court’s more recent decision in 2000 in Santa Fe Independent School District v. Doe, it seemed as if religious influence was being definitively pushed out of school activities.

John Green of the Pew Forum on Religion and Public Life stated, “[e]ven in a very modern, secularizing society, religion remains a very powerful source of values, a powerful source of activities and a powerful source of community.” However, while religion can be a strong uniting force, it’s proper role in government and public schools can also be a source of very heated conflict and debate.

Mississippi Governor Phil Bryant took pen to paper March 14, 2013 to sign a bill into law that will permit students to express religious beliefs and messages at school events. The controversial bill will require school districts to adopt policies which would allow students to present their religious beliefs in a “limited public forum” at school sporting events and during school announcements. According to the New York Times, the bill also requires schools to issue some form of disclaimer, such as a statement in the event program, informing the public that the religious speech is not a state sanctioned activity. The bill also notes that students will be able to express their personal religious beliefs in their school assignments and will be allowed to form and participate in organizations supporting those views.

Governor Bryant spoke confidently about the future of the new legislation saying that a lot of research went into its formation and that the senators modeled it after similar Texas laws. Opponents including the American Civil Liberties Union anticipate lawsuits to come once the bill goes into effect on July 1, 2013 if there is any proselytizing taking place in public schools. Opponents are also concerned that the limited funds of the school districts will be spent in the expensive legal battles that may follow once this law goes into effect. However, Governor Bryant has responded to his critics saying that, “[i]f we’ve got to spend taxpayers’ money, I think we would be honored to spend it in defending religious freedoms for the people of the state of Mississippi.”

As reported by the Huffington Post back in January, Indiana State Senator Dennis Kruse introduced a similar bill dealing with school prayer a few months ago. Kruse, who serves as chair of the Indiana senate’s education committee, is pushing to bring the Lord’s Prayer back into schools. Although there is an opt-out provision, all other students would be required to participate in reciting the prayer. However, the Indiana Senate’s legal committee believes that such legislation is unconstitutional.

Voters in Missouri were passionate enough to pass an amendment to the state constitution with over 80% of the popular vote. Commonly known as the “right to pray” amendment, it is described by supporters as an attempt to make the state constitution match the protections outlined in the United States Constitution and protect Christianity in the state which they feel is being threatened.

A year ago, the same thing happened in Florida. State Bill 98 was signed by the governor allowing students to read “inspirational messages of their choosing” at school events such as assemblies and sporting events. School officials are not permitted to interfere with any of the student-chosen messages. Several religious leaders of different faiths rallied together to protest the bill as being a violation of the First Amendment of the Constitution and “disrespectful of the religious diversity that makes our state and our nation great.”

As Noah Fitzgerel, a young high school journalist, wrote in a blog for Huffington Post, “[t]his bill is simply an iteration of an uncomfortable political movement that encourages the marginalization of minority religions in the name of a majority.”

In Santa Fe v. Doe, the Supreme Court declared student led prayer at Texas school events was a violation of the Establishment Clause of the First Amendment. A majority of the Court held that since the students used a loudspeaker system owned by the school it became school-sponsored prayer. It is hard to see how we can reconcile the recent actions of these state legislatures with the opinion of the Supreme Court handed down in Santa Fe v. Doe, but only time will tell what challenges will arise and what their fates will be.

Christian Cheerleaders & Religious Speech

By Anna  Jordan Cobb, Staff Member (Vol. 11)
October 28, 2012

“If God is for us, who can be against us? Romans 8:31” and “I can do all things through Christ which strengthens me! Phil 4:13” are a few examples of the banners cheerleaders displayed at Kountze High School in East Texas. For three weeks, football players ran through the large banners containing quotes from the Bible while entering the field. While the student cheerleaders believed this was just a way to exercise their freedom of speech, an unknown person complained to the Freedom From Religion Foundation, who in turn communicated with the school superintendent. Banners were subsequently prohibited at games. The mother of one of the cheerleaders, along with fourteen other parents, brought suit to challenge the school district’s decision to bar the cheerleaders’ signs. She claims that everyone at the small town high school agrees with the statements on the banners and for that reason they should not be a problem.

On October 18, Hardin County District Judge Steve Thomas stated that he decided to “preserve the status quo” and granted an injunction to allow the banners and bar the continuance of the ban. Thomas claimed that the school district had put into effect an “unlawful policy prohibiting private religious expression” prohibiting the cheerleaders “from exercising their constitutional and statutory rights.” As the Los Angeles Times reports, the injunction will be upheld until the case goes to trial on June 24, 2013.

Several Texas politicians have commended Judge Thomas’s ruling, including Governor Rick Perry who issued a statement expressing his approval. Texas Attorney General Greg Abbott also agreed with the judge’s decision and issued a statement praising him. Abbott said “[j]ust as schools cannot command students to support a particular belief, those same schools cannot silence a student’s religious belief. The Constitution does not give preference to those who have no religious beliefs over those who do.”

However, the school district’s lawyer and other commentators argue that a Supreme Court ruling in 2000, Santa Fe Independent School District vs. Doe, 530 U.S. 290, held this kind of religious display at a public school as against the First Amendment. In that case, Justice Stevens wrote that a student delivering a prayer over the loudspeaker before each football game was a violation of the Establishment Clause. “One of the purposes served by the Establishment Clause is to remove debate over this kind of issue from governmental supervision or control”, Stevens wrote, in order to avoid the danger of a unified church and state. The school district contends the cheerleaders represent the school as participants in a school sponsored organization. They argue that as members of a student group, their speech can be regulated since it is probable that people will confuse the cheerleaders’ speech with the schools’ speech.

The American Civil Liberties Union of Texas cites the aggressive support for Christian beliefs in state classrooms, assemblies, and ceremonies as widespread. In East Texas, supporters of the Kountze Independent School District’s ban recognize that minority non-believers feel threatened and intimidated by the use of Christian banners.  The Concerned East Texans for the Separation of Church and State group formed in response to the banners and has rallied their cause by showing up to the football games with banners of their own protesting the Christian signs. The Anti-Defamation League issued a statement saying that “[p]ublic schools are for children of all faiths or no faith . . . so students should not be subjected to an exclusionary school-sponsored religious message on campus.”

The superintendent himself, a Christian, says he is personally torn on the matter. The banners are sure to continue to create controversy until the case is decided in June.

This case highlights one of the many issues in the area of student First Amendment rights, especially because it involves religious speech.

North Carolina Gets Religion and Uses Speech to Lower Crime

By Benjamin K. Kleinman, Staff Member (Vol. 11)
October 14, 2012

The Ohio court of appeals recently held that a trial judge did not violate the First Amendment rights of a juvenile offender when he ordered the young man to write a 1,000-word essay on why racism is wrong. According to the First Amendment Center, the case dealt with a racially charged fight that began when one high school student started hurling racial slurs at another. The court rejected the First Amendment argument that compelling the juvenile offender to write an essay about racism amounted to “thought control,” infringing on his constitutional rights.

North Carolina has taken the issue of “compelled speech,” as a way to reduce criminal activity, to a whole new level. In Raleigh, North Carolina law enforcement agencies joined together to combat gang violence and drug crime, replicating a highly successful strategy first launched in High Point, North Carolina. The initiative, now called Project Safe Neighborhoods, sought to increase communication between police, community, and gang members as a method to reduce violence.

The impact of the program was profound. Evaluations of the High Point strategy revealed that the drug market vanished overnight. Three years after the High Point intervention, reductions in violent crime dropped 41%. Most importantly, at the time of the last formal evaluation in 2009, there had not been a homicide within the targeted area in five years. In Raleigh, two hundred days after the initial intervention, violent crime in the area was down 42% (David M. Kennedy, Deterrence and Crime Prevention158, 162 (2009)).

Speech was the key tool used to reduce the violence. Central to the strategy was a series of discussions between police and community members, addressing critical misunderstandings that prevented the reduction of violent crime in the past. As the police listened to community members, they began to understand that arrests and street stops were not seen by the community as well intentioned police work. Instead, the police realized that community members often viewed stop and arrest tactics through a powerful racial and historical lens, understanding that the law enforcement methods were frequently considered a form of oppression.

In turn, community members recognized that their mistrust and lack of communication with the police, regarding the violence in their neighborhood, was read by both law enforcement officials and gang members as tolerance and support of the violence (David M. Kennedy, Deterrence and Crime Prevention149 (2009)).

The key operational moment in the strategy was a “call-in.” The “call-in” was an in person meeting at which law enforcement officials and community members spoke with a unified voice in front of gang members and their probation officers.The message was clear: gang violence was severely hurting the community and must end. By speaking in a unified voice, the police and community members articulated a standard of behavior that the gang members subsequently followed.

While the power of speech to reduce crime is remarkable, these successful programs often have a religious element to them. In High Point, for example, the local pastor often led and hosted the meetings. When a religious element is involved, courts have been far from clear on the issue of compelled speech and mandatory participation in certain programs as a form of criminal sentencing. Some courts have upheld a plaintiff’s right to not participate in court programs that had an objectionable religious component. SeeWarner v. Orange County Dept. of Probation, 827 F. Supp. 261 (S.D. N.Y. 1993) (dealing with an Alcoholics Anonymous program). Yet another New York court, also dealing with an Alcoholics Anonymous program, remarked that not every state action implicating religion is invalid if one or a few citizens find it offensive. See Boyd v. Coughlin, 914 F. Supp. 828 (N.D. N.Y. 1996) (finding that relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution).

Let’s hope that if parolees participating in these programs bring suit against North Carolina, courts follow the rationale laid out in the Boyd case. Speech, even with a hint of religion, is just too powerful a tool not to be used freely.