Access to Public Meeting Space for Worship

Throughout the 1980s and 1990s, courts adjudicated numerous disputes between religious speakers and governments. The disputes arose when governments denied religious speakers equal access to public spaces, typically contending that the First Amendment's Establishment Clause required such discriminatory exclusions. Religious speakers argued that other parts of the First Amendment -- especially the Free Speech Clause -- required inclusion. These disputes illustrated the broader conflict between two visions of church-state relations: strict separationism vs. neutrality.

A number of these cases reached the U.S. Supreme Court: Widmar v. Vincent (1981) (student religious groups at public university); Westside Bd. of Educ. v. Mergens (1990) (student religious groups at public secondary schools); Lamb's Chapel v. Center Moriches Union Free Sch. Dist. (1993) (after hours use of public school to show religious film series on child rearing); Rosenberger v. Rector of the Univ. of Virginia (1995) (religious student publication access to public university financial support of speech activities); Capitol Square Review & Advisory Bd. v. Pinette (1995) (nongovernmental display of religious symbol in park near state capitol); Good News Club v. Milford Cent. Sch. (2001) (community religious group meeting at public elementary school). In each instance, the Court ruled in favor of the religious speaker, rejecting strict separationists' Establishment Clause arguments.

Despite these decisions, some governments are still reluctant to allow religious speakers to use public property. One such government is the New York City Board of Education, which has been defending its exclusion of the Bronx Household of Faith from meeting space for years. The board attempts to distinguish the Court's precedents by arguing that it is merely excluding a "subject matter" rather than a "viewpoint" on a subject that other speakers are permitted to address when using school meeting space after hours. The board's policy denies access to those wishing to engage in religious "worship." The board contends that "worship" is a "category" of speech that simply isn't permitted in the forum, in an effort to deflect a charge of discrimination on the basis of viewpoint.

The Bronx Household case is once again in the U.S. Court of Appeals for the Second Circuit, which has a notoriously poor record in equal access cases. (The Supreme Court reversed the Second Circuit in both Lamb's Chapel and Good News Club.) Briefing on the appeal was completed yesterday, when the board filed its reply brief.

The CLS Center filed a friend of the court brief in support of the church, arguing that the board's exclusion violates the Free Exercise Clause.

Supreme Court Won't Review Two Bad Religious Freedom Decisions

The U.S. Supreme Court announced today that it would not review two bad lower court decisions in religious freedom cases.

In Faith Center Church v. Glover, the Ninth Circuit held it was permissible for government to exclude a religious speaker from otherwise available meeting space on the ground that the speaker would engage in "worship."

In Catholic Charities v. Dinallo, the Second Circuit held that it was permissible for New York State for force Catholic Charities to cover contraceptives in its employee health benefit plan.

CLS's Center for Law & Religious Freedom participated as friend of the Court in each case, urging the high Court to review the lower court decisions.

Deconstructing Hein: Federal Government, Faith-Based Provider and ACLU Offer Different Readings in Laskowski v. Spellings

The Supreme Court strives to provide clear guidance to the lower federal and state courts through its opinions. When a case results in a fractured plurality, however, the Court can't be faulted for lack of trying. A recent case in point is Hein v. Freedom From Religion Foundation, 2007 WL 1803960 (June 25, 2007), a case widely viewed as offering the first definitive pronouncement on Establishment Clause taxpayer standing in twenty years. (See CLRF's blog post regarding the Hein decision here.) But the debate about the meaning of the case among the parties to a similar Seventh Circuit case that was GVR'd for Hein, Laskowski v. Spellings, 443 F.3d 930 (7th Cir. 2006), brings to mind the proverbial trio of blind men describing an elephant.

Laskowski is a taxpayer action brought against the Secretary of Education challenging a congressional earmark of $500,000 to the University of Notre Dame. The university intervened to defend the grant. The Seventh Circuit held the action moot with respect to the claim against the Secretary because the grant had expired, but ruled that the case could go forward as an equitable restitution action for recoupment against the university. This holding and the Seventh Circuit's holding in Hein that taxpayers could bring suit challenging purely discretionary Executive expenditures were a double-barrelled expansion of taxpayer standing that might have significantly broadened the availability of taxpayer claims if they had gone unaddressed by the Supreme Court. After the GVR, the Court of Appeals ordered the parties's counsel to brief the applicability of Hein to the case. Experienced counsel for the Justice Department, the ACLU of Indiana and Notre Dame (Michael Carvin of Jones Day) offered somewhat divergent views of the meaning of Hein to guide the court in their submissions in late July.

To the Justice Department (still participating in order to defend the Secretary from charges of acting unconstitutionally, a necessary predicate to establishing that the equitable remedy of recoupment was caled for), Hein requires dismissal because the question remaining before the court -- whether Notre Dame reasonably relied on the Secretary's authority - "[has] nothing to do with any exercise by Congress of its taxing and spending power." Moreover, Justice argues, Hein counsels that there can be no claim for recoupment that can be stated by a taxpayer, since "Establishment Clause taxpayer standing under Flast is not based on any notion that a taxpayer has an individual Article III stake in recovering money spent in violation of the Establishment Clause."

Notre Dame's argument is simpler and more direct. Carvin argues that Hein offers sufficient guidance for the Court of Appeals to simply affirm the District Court's original dismissal of the case. The recoupment remedy revived by the Seventh Circuit from hoaried dicta in Establishment Clause jurisprudence is a "dramatic expansion of taxpayer standing," the university argues, and hence goes well beyond the standing afforded by Flast v. Cohen. What's more, since the Secretary retained the discretion not to award the earmark to Notre Dame, "the plaintiffs do not challenge congressional action at all, but Notre Dame's alleged use of federal funds in violation of Executive regulations."

The plaintiffs are predictably dismissive of Hein's application. "The only relevance the decision in Hein has to this case is that Hein reaffirmed the validity of federal taxpayer standing, first noted in Flast v. Cohen, to challenge expenditures expressly authorized by a specific congressional enactment pursuant to Congress' power to tax and spend under Art. I, Sec. 8...." Because the taxpayers challenge a directed "teacher quality initiative" grant made pursuant to a specific appropriation under the Higher Education Act, Flast and Hein are satisfied, plaintiffs contend.

Notre Dame's argument on this point may end up carrying more weight than it might appear at first blush. The Supreme Court has strongly signaled that it is interested in Article III cases of late, having decided Hein in this past term and DaimlerChrysler Corp v. Cuno, 126 S.Ct. 1854 (2006), last year. If the Seventh Circuit disagrees with Notre Dame and holds that recoupment of unconstitutionally spent funds passes muster under Hein despite that it is not the congressional appropriation per se that is challenged, but how the money was actually spent by the grantee, it may be inviting further review.

Oral argument is set for November 5, 2007.

A Supreme Court Chronicler Tackles the Kulturkampf

Peter Irons, emeritus professor of political science at the University of California - San Diego and co-editor of the groundbreaking May It Please the Court series of audiotapes and transcripts of key Supreme Court decisions, has published God On Trial (Viking 2007), a travelogue of sorts through half a dozen American communities that have been impacted by the religious cultural wars of the last twenty years.

Irons reminds us that just as “all politics is local,” so also is all jurisprudence, and particularly constitutional law. Irons’ thesis is that the big decisions about the constitutionality of religious symbols such as public memorial crosses and Ten Commandments displays that emanate from the Supreme Court have their genesis in local political struggles between factions that view the symbols as vibrant and meaningful and those who regard them as exclusionary and imperious. The seeds of the book, Irons says, are found in Oliver Wendell Holmes’ aphorism, “We live by symbols,” and he seeks to tell the stories of the people who have played key roles on both sides of these so-called “symbol cases.”

The book’s readability and unpretentiousness have Irons sounding like an Ernie Pyle of the Kulturkampf. Irons combines solid, fact-combing legal journalism with fascinating interviews of the personalities who instigated the cases or found themselves swept up in them, from trial lawyers and politicians to preachers and regular folks. These are presented in unbroken monologues spoken in the subjects' own voices, like an oral folk history, and are deftly edited and detailed. The effect is refreshingly different from the stale Q&A format - rather like being taken on a personal walking tour by, for example, Barry Lynn, through his early life as a Goldwater Republican in blue-collar Bethelehem Steel country, or by Jay Sekulow as he recounts growing up Jewish on Long Island.

As a strict separationist himself, and a veteran of several of the court battles he discusses, Irons cannot help but cast the conflict (perhaps unconsciously) as one between those who desire to impose their religious beliefs on others and those who want tolerance. He maintains the overall balance of the book fairly well, though, and he is clearly trying to be honest and accurate in his portrayals of both sides. For its small flaws, God On Trial is a delightful summer read.

Forced Coverage of Contraception

Catholic Charities of the Diocese of Albany has asked the U.S. Supreme Court to stop New York from pressuring it to pay for contraception. CLS has joined an amicus brief written by Sidley & Austin urging the Court to take the case.


The New York’s Women’s Health and Wellness Act ("WHWA") requires that all group insurance policies that include coverage for prescription drugs also provide coverage for prescribed contraceptive drugs or devices. The legislature exempted "religious employers" from this requirement, but defined that phrase narrowly.


Catholic Charities fell outside this exemption, and was thus required, contrary to its religious beliefs, to pay for contraceptives if it continued to provide prescription drug insurance coverage to its employees. It filed a religious freedom lawsuit, which the New York courts rejected. On May 18, it asked the U.S. Supreme Court to review the lower courts' rejection of its claims.



California adopted a similar law, and Catholic Charities of Sacramento filed a similar lawsuit. It lost in state court, and the U.S. Supreme Court refused to take its case. We hope that the Court takes the New York case and reverses the lower courts' decision that free contraception is more important than religious liberty.

Were Abortion Advocates Blowing Smoke or Have We Just Had 97 Days of Remarkable Luck?

The Supreme Court issued its decision in Planned Parenthood v. Gonzales (and Carhart v. Gonzales) on April 18, 2007, upholding the constitutionality of the Partial Birth Abortion Ban and holding that a "health" exception to the statute was not constitutionally required (the law contains a life exception). Abortion advocates argued to the Court that the lack of a health exception in the law would threaten women's health. In the wake of the decision, Planned Parenthood warned that it was "bad news for women's health and safety." A multitude of voices, both among the full-time abortion advocates and those advocates employed as newspaper editorialists warned of the imminent harm women faced as a result of the decision.

As Ramesh Ponnuru pointed out, the number of Partial Birth Abortions performed annually prior to the Court's decision was very much in doubt. But as he notes even the Guttmacher Institute, Planned Parenthood's research arm, admits that there were 2200 Partial Birth Abortions in 2000. Accepting this figure, likely a serious understatement, 6 partial birth abortions were performed every day. Ruling out such procedures when necessary to save a woman's life - a circumstance that has never been shown to exist in the real world but nonetheless exempted under the Act - as of today, July 23, 2007, that is 582 partial-birth abortions NOT performed since the Supreme Court's decision came down.

Although the Court noted that its decision would permit an as-applied challenge to the PBA Ban in the case of a woman whose health would actually be threatened were she not allowed to have a partial-birth abortion, and Justice Ginsburg invited such a case in her dissent, no such challenge seems to have been brought. Given that such a woman would presumably need immediate relief from a court - through a temporary restraining order - one would think that if such a circumstance presented itself that the case would almost immediately find its way to court on an emergency basis. At a minimum, one would think that we would have heard well-publicized stories of these women whose health was jeopardized by not being able to have their child delivered alive past the navel (or its head delivered) and THEN killed. It seems that experience is teaching us that the American Medical Association was right when it determined that partial-birth abortion is "not medically indicated."

582 averted partial-birth abortions and NO women harmed. Either an incredible run of luck or perhaps it underscores the biggest victory in the case for life - the unmasking of the abortion lobby's claims that abortion protects women's health.

Summary of Opinions in Hein v. Freedom From Religion Foundation

The following summary of the Supreme Court's opinions in Hein v. Freedom From Religion Foundation was prepared by Pamela McElroy, a Blackstone intern spending her summer here at CLRF:

Hein v. Freedom From Religion Foundation, No. 06-157, slip op. (U.S. June 25, 2007), asked whether federal taxpayer status confers standing to challenge an executive action as a violation of the Establishment Clause. The Supreme Court, in a 5-4 decision, reversed the Seventh Circuit and answered no. Justice Alito, writing for a plurality of the Court comprised of himself, Chief Justice Roberts, and Justice Kennedy, rejected what he described as the Seventh Circuit’s broad reading of Flast v. Cohen. According to Alito’s opinion, Flast confers standing to federal taxpayers to raise challenges under the Establishment Clause only if the challenged activities are funded by specific congressional action or appropriation. Alito purports to “leave Flast as [he] found it,” but the logic of the holding fractured the Court, provoking sharp criticism from the four dissenters and from Justice Scalia, who, joined by Justice Thomas, concurred in the judgment only. Id. at 24.

The taxpayers in Hein alleged that national conferences held as part of President Bush’s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment. The District Court dismissed the claim for lack of standing. The Seventh Circuit then reversed, reading Flast as granting standing to challenge any program on Establishment Clause grounds so long as the activities were financed by any congressional appropriation, even where no statutory program existed. In overturning the Seventh Circuit decision, Justice Alito emphasizes the importance of “the kind of redressable ‘personal injury’ required for Article III standing,” and characterizes Flast as a carved-out, narrow exception to the personal injury requirement. Id. at 8, 11.

Alito then proceeds to hold that the challenge presented did not satisfy the two-part standing test articulated in Flast. Flast stated that in order to show standing derived simply from federal taxpayer status, a taxpayer must first “establish a logical link between that status and the type of legislative enactment attacked.” Id. at 11 (quoting Flast v. Cohen, 392 U.S. 83, 102-103 (1968)). Essentially, this means that federal taxpayers can only challenge the constitutionality of exercises of congressional power under the taxing and spending clause of Article I, Section 8. Secondly, the taxpayer must show that the challenged legislation “exceeds specific constitutional limitations” imposed on Congress’ taxing and spending power, “not simply that the enactment is generally beyond the powers delegated to Congress by Article I, Section 8.” Id. at 11. Alito never reaches the second prong, finding that this particular challenge does not satisfy the first prong of the Flast test, because the challenged program is not funded by the correct “type of legislative enactment.” Id. at 13. “The expenditures at issue,” he writes, “were not made pursuant to any Act of Congress,” nor were they expressly authorized by Congress. Id. at 14. The programs were funded by general appropriations to the Executive Branch, and thus they could not be challenged by federal taxpayers.

Alito goes on to express concern that a reading of Flast that conferred standing to taxpayers in this case would “raise serious separation-of-powers concerns.” Id. at 20. He notes that “Flast itself gave too little weight to these concerns,” and seeks to avoid a situation in which federal courts would be enlisted to “superintend” the Executive Branch “at the behest of federal taxpayers.” Id. at 20, 21. Alito dismisses fears of federal agencies using general appropriations to “build houses of worship, or to hire clergy,…or… to make bulk purchases of Stars of David” noting that none of these things has yet happened, and that Congress could interfere if they did. Id. at 24.

In a concurring opinion, Justice Kennedy appears to share greatly in these separation-of-powers concerns. Though Kennedy emphatically states that “the result reached in Flast is correct and should not be called into question,” he fears the ramifications of “mak[ing] a narrow exception boundless.” Hein v. Freedom From Religion Foundation, No. 06-157, slip op. 1, 2 (U.S. June 25, 2007) (Kennedy, J., concurring). For whatever it is worth, Kennedy goes on to urge government officials to make a “conscious decision to obey the Constitution” even if their actions cannot be legally challenged. Id. at 3, (Kennedy, J. concurring). Given Kennedy’s position, the plurality seems joined around a compromise decision not to disturb Flast, but to prevent its extension.

Scalia makes it clear in his concurrence in the judgment that he, unlike Kennedy, would have been much happier with a decision that overruled Flast. Like the plurality opinion, Scalia’s opinion begins with a discussion of Article III restrictions on standing, specifically the requirement of a “concrete and particularized” “injury in fact.” Hein v. Freedom From Religion Foundation, No. 06-157, slip op. 2 (U.S. June 25, 2007) (Scalia, J., concurring in judgment). Scalia argues that financial injury to a taxpayer cannot satisfy the traceability and redressability requirements for standing due to the speculative nature of any inquiry into the effects of congressional spending on any particular person’s tax bill.

Scalia then moves on to what he labels “psychic injury,” which is exactly the type of injury at issue in Hein and in Flast— the mental displeasure of seeing tax money spent in an unlawful manner. Id. at 2 (Scalia, J., concurring in judgment). Scalia would find that psychic injury does not confer standing because it is exactly the generalized grievance that the standing requirement was created to avoid. He argues however, that if psychic injury is accepted at all, there is no principled way to limit in the way that the plurality opinion has done. There is no reason to limit the acceptability of psychic injury for standing purposes, as the first prong of the Flast test does, to cases arising under Congress’s taxing and spending power. Neither is there any reason to limit standing in such cases to violations of specific constitutional limitations, as though generally exceeding the taxing and spending power were somehow less unconstitutional than violating the Establishment Clause.

Finally, Scalia argues that the plurality’s new requirement that the government expenditure be expressly allocated by Congress has “absolutely no relevance to Article III criteria of injury in fact, traceability, and redressability.” Id. at 12 (Scalia, J., concurring in judgment). He ends with a flourish, characterizing the plurality position as essentially “beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive.” Id. at 20 (Scalia, J., concurring in judgment).

The dissent, authored by Justice Souter, rejects Alito’s separation-of-powers argument, stating that, on the spending question, “there is no difference between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one.” Hein v. Freedom From Religion Foundation, No. 06-157, slip op. 3 (U.S. June 25, 2007) (Souter, J., dissenting). Souter also argues that though “injury in fact” may be straightforward in cases of economic and physical injury, “subtle” enquiry may be required in cases alleging intangible harms. Id. at 6, (Souter, J., dissenting). Souter advocates a case by case evaluation of intangible harms. He and Justices Stevens, Ginsburg, and Breyer would have found standing in this case under Flast.

Because of Kennedy’s position in Hein, taxpayers will continue to have standing to challenge alleged Establishment Clause violations in fact situations that closely resemble Flast—federal taxpayers alleging that a specific congressional act appropriates funds for a program that violates the Establishment Clause. Incidentally, just three days after it decided Hein, the Supreme Court reversed and remanded Laskowski v. Spellings to the Seventh Circuit for consideration in light of Hein. Laskowski may ultimately give the Court cause to clarify its ruling in Hein, as it will likely require further consideration of what constitutes a “specific congressional appropriation.”

Summary of Opinions in Morse v. Frederick ("Bong Hits for Jesus")

The following summary of the Supreme Court's opinions in Morse v. Frederick was prepared by Julie Baworowsky, a Blackstone intern spending her summer here at CLRF.

Morse v. Frederick, No. 06-278, (U.S. June 25, 2007).
Procedural History: The Ninth Circuit had held that a school principal violated the First Amendment when she suspended a student for a banner reading “Bong Hits for Jesus” and displayed by him across the street from the school during a parade passing the school grounds. The Ninth Circuit also held that the principal could not assert qualified immunity from personal liability for her actions. The Principal and School Board argued in the Supreme Court that school officials must have the authority to censor student speech that is deemed “inconsistent with the school’s educational mission.” Organizations across the ideological spectrum, including the Christian Legal Society, filed amicus briefs in support of the student and warning that such a broad assertion of school authority could be and often is used to justify censorship of student religious speech in schools.

The Supreme Court reversed. Justice Roberts’s majority opinion, in which Justices Scalia, Kennedy, Thomas, and Alito joined, held that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use and hence the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick. The opinion holds:
(1) That adjudicating this case on grounds of qualified immunity alone is inadequate because it would only resolve the damages question, leaving injunctive relief unaddressed.
(2) That this case is to be analyzed as a student free speech case, since Frederick was among peers at a school-approved event during school hours near school with a message visible to students.
(3) Principal Morse’s reading of the banner as either an encouragement or an imperative to illegal drug use is one reasonable interpretation for students, teachers, and others. Additionally, although it does not express a political or religious message, the banner’s reference to illegal drugs prevents judges from treating it as gibberish.
(4) It reaffirmed Fraser’s holding that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings” and Tinker’s permission to circumscribe the rights “in light of the special characteristics of the school environment.” Morse v. Frederick, No. 06-278, slip op. at 11 (U.S. June 25, 2007)
(5) Tinker and Fraser do not provide the framework for analyzing every student speech case. It refused to categorize Frederick’s banner as either disruptive under Tinker or “offensive” under Fraser.
(6) The court stresses the danger of student drug use and the “important- indeed, perhaps compelling” interest of the state schools, in a tutelary capacity, to deter drug use. Id. at 12.
(7) The special characteristics of school and the important deterrence interest allow schools to restrict student expression that are reasonably viewed as promoting drug abuse.
(8) The court characterizes consensus between the majority and dissent: (a) on the permissibility of targeted viewpoint discrimination, (b) that schools do not need to tolerate advocacy of drug use, when that speech falls short of inviting imminent lawless action, (c) that the principal should enjoy qualified immunity for her actions. It describes the real dispute as “less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use. We have explained our view that it does.” Id. at 15.

Justice Alito’s concurrence, in which Justice Kennedy joined, supports the majority “on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” Morse v. Frederick, No. 06-278, at 1 (U.S. June 25, 2007) (Alito, J. concurring) (citation omitted). The opinion states:
(1) the Court correctly reaffirms Tinker and notes it is not the only grounds on which in-school student speech may be regulated by state actors in a way that would not be constitutional in other settings. Id. at 1-2. “But I do not read the opinion to mean that there are necessarily any grounds for such regulation that are not already recognized in the holdings of this Court…I join in the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions. Id. at 2.
(2) The court does not agree with, and Alito would reject, that schools may censor any student speech interfering with its “educational mission” due to wide abuse of the definition of that mission as “the inculcation of whatever political and social views are held by” school rule-makers.
(3) Alito rejects the dangerous fiction that the state agents in schools may stand in the shoes of parents to strip them of their limits as state actors, especially since few parents realistically have a choice about public education. “Any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting.” Id. at 3.
“The special characteristic that is relevant in this case is the threat to the physical safety of students.” School officials must have greater authority to intervene before speech leads to violence, as when Tinker’s substantial disruption standard. The grave and unique threat of illegal drug use to physical safety allows “regulation standing at the far reaches of what the First Amendment permits.” Id. at 4. Because Justice Alito’s concurrence is narrower than that of Justice Roberts’ opinion and qualifies the votes of Justice Alito and Kennedy that provided the majority, Justice Alito’s opinion should be considered the controlling opinion in the case.

Justice Thomas concurred in order to state his view that Tinker was wrongly decided:
(1) The First Amendment as originally understood does not protect student speech in schools, and so Tinker’s standard is without basis in the Constitution.
(2) The practices of “iron hand” private tutors, operating under the doctrine of in loco parentis, to restrict speech in order to instill “a core of common values” and self-control were adopted wholesale by 19th Century public schools. Broad local and democratic latitude existed to allow teachers to punish speech contrary to the school and its educational goals, subject to limitation on excessive physical punishment. Morse v. Frederick, No. 06-278, at 2 (U.S. June 25, 2007) (Thomas, J. concurring).
(3) Tinker surrendered control of schools to students, resulting in confused and vague case law stating that “students have a right to speak in schools except when they don’t- a standard continuously developed through litigation against local schools and their administrators.” Id. at 9-10.
(4) Those who do not wish to be under school rules should seek redress legislatively or through nonpublic education; voluntary enrollment in public education means they must follow the school rules.

Justice Breyer’s opinion concurring in judgment but disagreeing in the reasoning, would hold instead “that qualified immunity bars the student’s claim for monetary damages and say no more.” Morse v. Frederick, No. 06-278, at 1 (U.S. June 25, 2007) (Breyer, J. concurring in judgment and dissenting in part).
(1) Serious concerns about the extension of a holding permitting viewpoint discrimination, why drug use is so differently a justification for regulation, right means to avoid significant interference with school discipline, judicial unanimity, and judicial restraint, are reasons not to decide the issue unless the Court must.
(2) There is serious dispute over the law in this case.
(3) The Saucier v. Katz “order of battle” rule that the right must be examined before qualified immunity should be set aside. Id. at 6.
(4) The remaining issue of injunctive relief (to expunge his punishment from school records) may be dealt with as unnecessary, since his punishment may be justified on other grounds upon remand to a lower court.

Justice Stevens dissent, joined by Justices Souter and Ginsburg, argues that the principal should not be held liable but that the ambiguous reference to drugs on the banner cannot be censored because of “the school’s interest in protecting its students from exposure to speech reasonably regarded as promoting illegal drug use.” Morse v. Frederick, No. 06-278, at 1 (U.S. June 25, 2007) (Stevens, J. dissenting).
(1) The limits on the school’s assertion of such compelling interests and deference to the “reasonable” interpretations of listeners are unclear.
(2) Since case law favors protecting speech short of actual harm, in this setting the dissent would employ some relaxed imminence requirement, to protect student speech unless it “expressly advocates conduct that is illegal and harmful to students.” Id.
(3) The majority permits punishment based upon a listener’s disagreement with or misunderstanding of a viewpoint and invites “stark viewpoint discrimination,” id. at 2, instead of “some targeted viewpoint discrimination.”
(4) The dissent would require a judicial determination of Frederick’s message. The majority’s characterization of it as drug advocacy, through deference to a listener’s interpretation of the speech, ignores a judge’s duty to objectively analyze speech for its most reasonable interpretation. “[I]t would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct…yet would permit a listener’s perceptions to determine which speech deserved constitutional protection.” Id. at 9.
(5) Frederick’s speech is better categorized as “never meant to persuade anyone to do anything” and therefore, not to be regulated for drug deterrence.
(6) Students are likely now to avoid any mention of illegal activity, since anyone may “reasonably” perceive it as drug advocacy.
(7) If this is a close case, the tie should go to the speaker, not the school.
(8) Justice Stevens personally reminisces about the Vietnam War protests and Prohibition-era disagreement as analogies in favor of open discussion, suggesting that perhaps one day illegal drugs will be legalized.

Today's Opinions and a Little SCOTUS Bingo - UPDATE on Possible Authorship of Hein

SEE UPDATE AT END...

None of the opinions we're following closely were decided today, but the Court did issue opinions in three pending cases.

In Sole v. Wyner, the Court held that a party that receives a preliminary injunction but then ultimately loses the case on the merits is not eligible for attorneys fees under 42 U.S.C. 1988. Justice Ginsburg wrote the decision for a unanimous court. The Court stressed that it was NOT deciding the larger (and more critical) question whether "in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may
sometimes warrant an award of counsel fees." As the Center for Law & Religious Freedom has sought (and received) attorneys fees in some of its litigation victories over the years - some after receiving preliminary injunctions where the Defendants then mooted the case by amending their policies or settling with our clients - this issue remains of interest to CLRF.

The Court also issued opinions in Safeco Insurance v. Burr (06-84) and GEICO v. Edo (06-100) (consolidated) authored by Justice Souter and Uttecht v. Brown (06-413) authored by Justice Kennedy. For more on these opinions see Scotusblog.

Now for a little bingo.

With today's decisions only one case remains undecided from the January sitting, Davenport v. Washington Education Ass'n. Only one justice has not yet issued an opinion from that sitting, Justice Scalia. If you're an opponent of compelled speech this is likely good news. More background on the case is available here from the Medill School of Journalism.

The two cases addressing racial preferences in secondary school admissions Parents Involved in Community Schools v. Seattle School District #1 and Meredith v. Jefferson County Board of Education are the only remaining cases from the December sitting and the opinion in these cases is probably being authored by Chief Justice Roberts, the only justice to not have issued an opinion from that sitting.

Only seven cases were heard in February, including Claiborne v. U.S. and Rita v. U.S., sentencing guidelines cases heard the same day and probably decided in a single opinion. Claiborne was dismissed today due to Mr. Claiborne's death this past week. Rita and Hein are the only opinions remaining from the February sitting. Justices Kennedy, Scalia, Souter and Ginsburg have issued opinions in February and are unlikely to be writing the opinions in either Rita or Hein, but other than this observation the tea leaves are a bit sparse. And no opinions have yet been issued from the March sitting in which Morse v. Frederick was heard, so any speculation as to authorship of that opinion would be, well, speculative.

UPDATE -- Reading a few more tea leaves, Tom Goldstein at Scotusblog is now predicting that Chief Justice Roberts is writing the Hein decision. If this prediction comes to pass, the decision could be very interesting. Chief Justice Roberts was counsel in Lujan v. Defenders of Wildlife, the landmark standing decision that held that Article III's "case or controversy" requirement was the "irreducible constitutional minimum" of standing (as opposed to being a more flexible rule that the Court could waive in a given circumstance). Justice Roberts advocated for this stricter adherence to Article III in Lujan and may have a particularly strong interest in reigning in the Court's standing jurisprudence. Some have argued that Flast v. Cohen, the decision allowing taxpayer standing in establishment clause cases, is at odds with Lujan's understanding of Article III as the unyielding constitutional restraint on the Court's exercise of jurisdiction. Although the Court need not directly address the constitutionality of taxpayer standing in order to decide Hein, it is not outside the realm of possibility that it would. And in any case, a Roberts opinion might provide some indication as to how taxpayer standing will fare once the issue is squarely presented to the Court.

Supreme Court Opinions Due Today

It's June, when every young constitutional lawyer's fancy turns to Supreme Court Order Lists. The Court is set to issue one or more opinions today at 10 A.M. (and every Monday through the rest of this month).

Among the cases we're watching are these below. Watch this space for analysis (or at least off-the-cuff reaction) once the opinions come down.

Hein v. Freedom from Religion Foundation.
Question presented: Whether taxpayers have standing under Article III of the Constitution to challenge on Establishment Clause grounds the actions of Executive Branch officials pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government?

Davenport v. Washington Education Association.
Questions presented: (1) Do labor union officials have a 1st Amendment right to seize and use for politics the wages of nonmembers who have chosen not to become union members? (2) Does a state campaign finance law that prohibits labor unions and their officials from seizing and using the wages of nonmembers for partisan political campaigns without obtaining the nonmembers' affirmative consent violate the 1st Amendment rights of labor unions?

Morse v. Frederick.
Questions presented:1. Whether the First Amendment allows public schools to prohibit displaying messages promoting the use of illegal substances at school sponsored, faculty-supervised events.
2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public high school principal was liable in a damages lawsuit under 42 U.S.C. 1983 when, pursuant to the school district's policy against messages promoting illegal drug use, she disciplined a student for displaying a large banner with a slang marijuana reference at a school-sponsored, faculty-supervised event.

Parents Involved in Community Schools v. Seattle School District #1.
Questions presented: (1) How are the Equal Protection rights of public high school students affected by the jurisprudence of Grutter v. Bollinger and Gratz v. Bollinger? (2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools? (3) May a school district that is not racially segregated and that normally permits a student to attend any high school of her choosing deny a child admission to her chosen school solely because of her race in an effort to achieve a desired racial balance in particular schools, or does such racial balancing violate the Equal Protection Clause of the 14th Amendment?

Meredith v. Jefferson County Board of Education.
Questions presented: (1) Should Grutter v. Bollinger and Regents of University of California v. Bakke and Gratz v. Bollinger be overturned and/or misapplied by the Jefferson County Board of Education to use race as the sole factor to assign students to the regular (non-traditional) schools in the Jefferson County public schools? (2) Whether the race-conscious Student Assignment Plan with mechanical and inflexible quota systems of not less than 50% of African American students without individually or holistic review of any student, meets the 14th Amendment requirement of the use of race which is a compelling interest narrowly tailored with strict scrutiny? (3) Did the District Court abuse and/or exceed its remedial judicial authority in maintaining desegregative attractiveness in the public schools of Jefferson County, Kentucky?

Charles Stanley for SCOTUS?

In all the anti-Catholic backlash from certain quarters over the Partial-Birth Abortion decision last week, and the complaints that a majority of the Court is Catholic, I think a gorilla in the corner is being ignored. If we're going to play identity politics with the Court, how about the fact that there are no Baptists on the Supreme Court? [Full disclosure, I'm a Southern Baptist now attending a nondenominational church]. Baptists are the largest Protestant denomination in America, making up over 16% of the population. Despite this fact, there have been three Baptist Supreme Court Justices in the 200+ year history of the United States. The last was Hugo Black.

But it's not just the Baptists who are underrepresented on the Court. Although Lutherans make up 5% of the population, the only Lutheran in the Court's history was Chief Justice Rehnquist. And no Pentecostal has ever been on the Court. While Presbyterians have been overrepresented in Supreme Court history, the last Presbyterian on the Supreme Court bench was Lewis Powell.

What does this mean? Perhaps it shows that political judgments have been made - particularly in recent history - that adherents of at least some evangelical Protestant denominations would face even more scrutiny and suspicion of their beliefs than would a Catholic nominee. Maybe the real problem is media and elite bias against sincere religious believers generally and Catholics are just getting the vitriol at the moment because they happen to be carrying the [Holy] water on the Supreme Court right now. The reaction of certain quarters to the Partial-Birth Abortion decision then may be more anti-Christian than anti-Catholic. As much anti-Catholic bigotry as is being displayed in the wake of the Partial-Birth Abortion decision, I have to think the attacks on the Justices' faith would have been no less rabid had Justice Roberts been a Southern Baptist. But then Tony Auth's cartoon wouldn't have been quite as cute if he had to exchange Justice Roberts' mitre for an Annie Armstrong offering envelope.

Basic Flow of Oral Argument in FEC/McCain v. Wisconsin Right to Life

Although the oral argument transcript will be available shortly, below is my reconstruction of the basic flow of this morning's oral argument in FEC/McCain v. Wisconsin Right to Life ("WRL"). (I posted a short synopsis earlier. I also must disclaim any expertise on McCain Feingold's provisions or this case in particular. These are purely my impressions from this morning's argument.)

Solicitor General Paul Clement gave his usual polished performance as counsel for the US government in arguing that McCain Feingold was constitutional in its application to the WRL ads. Chief Justice Roberts seemed concerned by the breadth of the government's argument and insisted that SG Clement spell out what kinds of ads would be protected by the First Amendment and not banned by McCain Feingold if WRL's ad could be banned as the government argued. SG Clement gave three examples: 1) a 501 (c)(3) organzation that did not have time to set up a separate PAC, noting that WRL had a separate PAC; 2) an ad run in a primary in which the candidate was running unopposed; and 3) an advertising series that had begun long before the blackout period but was continuing during the blackout period.

Justice Kennedy rebuffed the SG's argument that WRL's position was weakened by the fact that WRL did not run its filibustering ads until the 60 day blackout period was in effect, rather than running them earlier in the year when filibustering was also an issue. Justice Keenedy suggested that the public only pays attention near an election, so that it made sense to run ads during election periods even if the issue had arisen earlier. Justice Kennedy also raised the point that there might be political value in running ads regarding an unopposed (or "safe") candidate's positions in order to influence the conduct of the safe candidate after reelection.

Justice Scalia asked how the government could look at the subjective intent of the WRL in running the ad and eloquently reminded the government that in a First Amendment case citizens are not supposed to have the burden of proving that their speech is permissible. He spoke of the need for a clear line as to what ads enjoyed First Amendment protection from McCain Feingold regulation.

Former SG Waxman argued on behalf of Senator McCain. Chief Justice Roberts pressed him for what test he would use to determine whether an ad was protected by the First Amendment from regulation. He proposed that ads that were the "functional equivalent of express advocacy" would be subject to regulation. The Chief Justice further asked whether the burden of proof on a First Amendment challenge was on the government or the citizen.

Justice Alito also queried Waxman as to the test he was proposing and whether it was akin to "would a reasonable person see this ad as electioneering"? He also asked whether Waxman was troubled by the array of advocacy groups supporting WRL's position. Mr. Waxman responded with a lengthy discussion of why the ACLU was wrong to take a position in support of WRL's ads when the ACLU has a policy of not running political ads advocating any particular candidate. Justice Scalia interrupted to ask Mr. Waxman why he was picking on the ACLU.

Jim Bopp presented a very solid argument in favor of WRL's position. He began by directing the Court's attention to the fact that government experts in the trial court had said that WRL's ad was not a sham ad but was truly grass roots advocacy. In other words, even under McConnell's test, the ad should be protected. Otherwise, Bopp argued, the government would simply be relying upon the subjective intent of the speaker to determine whether or not speech was allowed, ie., if the speaker intended to be electioneering, the ad would be regulated, if the speaker had no such intent, the ad would be protected.

Justices Breyer and Souter ted the argument by insisting that context and intent (both of the speaker and of the listener) was all-important in determining whether an ad was protected speech or not. Justice Breyer insisted that WRL's goal was overturning McConnell, not simply protecting this particular ad. Mr. Bopp replied that basic First Amendment law does not allow the government to regulate protected speech simply in order to regulate unprotected speech.

Justice Kennedy asked Mr. Bopp to explain how the WRL ads were grass roots ads like hypotheticals that had been discussed approvingly in McConnell.

Justice Souter insisted that context was all important and that speech's meaning is determined solely by the listener. Mr. Bopp insisted that a subjective test was too vague if it depended on the listeners' intent and not the meaning of the actual words. Justice Souter insisted that context has always been considered in determining whether speech was protected. He also characterized Bopp's argument as saying that the voters are dumb, so their understanding of an ad's intent should not determine whether it is protected.

As a bright line, Justice Scalia and Mr. Bopp suggested that the government can regulate corporations writing checks to candidates but not the independent speech of the corporations.

Justice Stevens skeptically asked whether the real intent of the WRL ad could have been to get Senator Feingold to change his vote on filibustering judicial nominees. Mr. Bopp defended the plausibility of such an ad by claiming that Wisconsin's other Senator (Senator Kohl) had changed his position on the filibuster earlier. At this point either CJ Roberts or Justice Scalia interjected, "Is that called democracy?"

CJ Roberts ended questioning of Bopp by asking him to outline his argument for winning without overturning McConnell.

Justice Scalia Warns Liberals Not to Pick on the ACLU

During the Supreme Court oral argument this morning in FEC/McCain v. Wisconsin Right to Life, Justice Scalia asked former Clinton Solicitor General Seth Waxman to explain why he was "picking on the ACLU." Justice Scalia's truly unexpected question engendered laughter in the courtroom.

In response to Justice Alito's question pointing to the number of advocacy groups filing amicus briefs in support of Wisconsin Right to Life's ("WRL") freedom of speech, former General Waxman spent a great deal of time focusing on the ACLU's filing against application of McCain Feingold in this case, criticizing the ACLU for its position because the ACLU has a policy of not running ads in favor or against political candidates.

The relevancy of the ACLU's policy to its amicus arguments was not clear, and Justice Scalia finally cut off this particular argument by asking Mr. Waxman, "Why are you picking on the ACLU?"

Who would ever have expected to see Justice Scalia defending the ACLU from the criticism of a Clinton Administration official?

Papal Influence Over the Supreme Court Grows

In three opinions issued this morning, one written by that noted Papist Anthony Kennedy, the other two joined by him, the Supreme Court reversed 3 death sentences. Though the Vatican would no doubt have preferred the decision be on John 7:53-8:11 grounds, I’d guess that Pope Benedict will take it. The Holy See’s excommunication of non-conformists Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito is expected soon. On a rosier note for the Papacy, today’s decisions are evidence that Justices Ginsburg, Stevens, Souter and Breyer have converted to Catholicism.

Of course, this is all tongue-in-cheek. But I wonder how the same editorialists and scholars who saw a papal plot in last week’s Partial-Birth Abortion decision will see this week’s death penalty decisions. Will they now cheer Justice Kennedy for his legal brilliance and moral clarity? Will they observe that the four dissenters in today’s death penalty decisions were evidently able to break the yoke of Rome in their votes today? I’m guessing not. That wouldn’t fit the preferred narrative of unthinking religious believers who vote to impose their morality on the nation v. secular citizen-scholars seeking to defend the Constitution.

For my part, I think today’s decisions prove what we in the Center have known all along. Isaac Fong is right.

Supreme Court Hears Oral Argument in Free Speech Case Today

I just returned from listening to the Supreme Court oral argument in FEC/McCain v. Wisconsin Right to Life. The issue is whether application of the McCain Feingold Act to television ads by Wisconsin Right to Life ("WRL") violated the Free Speech Clause of the First Amendment. McCain Feingold's restriction on political ads for or against a political candidate by corporations or labor unions 60 days before a general election was held facially constitutional a few terms ago in McConnell.

WRL challenged its application to a television ad that WRL ran during the 60 days before a general election that stated that a group of senators,including Senator Feingold of Wisconsin, were threatening to filibuster President Bush's judicial nominees and urged viewers to visit WRL's website for further information.

Chief Justice Roberts and Justice Scalia fired most of the questions indicating they thought the law's application was unconstitutional. Justices Breyer and Souter consumed most of WRL's time with questions that clearly indicated their deep concern that the McConnell decision is in danger of being overruled. I have rarely heard either of those two sound so emotional in their questioning of counsel. They seemed truly upset by the possibility that McConnell might be abandoned as well as adamant that the ad in question should be banned under McCain Feingold.

Justices Ginsburg and Stevens seemed inclined to hold valid the law's application to the ad. Justice Thomas did not raise any questions. Justice Alito questioned Seth Waxman about the fact that so many advocacy groups from across the spectrum found application of the ad in this case troubling. Justice Kennedy asked several questions of both sides.

Toward the end of the argument, Chief Justice Roberts asked James Bopp, counsel for WRL, to spell out how the Court could rule that McCain Feingold had been applied unconstitutionally in this case without overturning McConnell. I would predict that is how the case will go: a win for WRL and a severe narrowing of McCain Feingold's applicability without overturning McConnell.

We'll know in 2 months.

I will outline the argument in more detail below for those interested in the flow of the argument.

Was Roe anti-Catholic from its conception?

Interestingly Roe v. Wade was decided in 1973--two years after Lemon v Kurtzman in which the Supreme Court struck down various forms of assistance to religious schools, which at the time were almost exclusively Roman Catholic. In 1973 the Court struck down other aid to religious schools in the Nyquist decision. Is it possible that a majority of the Court had a bias, conscious or unconscious, against the Roman Catholic faith that manifested itself in two separate lines of cases holding unconstitutional government action perceived to be sympathetic to the Catholic Church (i.e.,restrictions on abortions and funding assistance to Catholic schools)?

Justices in Mitres

How not to visualize the partial birth abortion decision: Tony Auth's April 20, 2007 political cartoon has the Gonzales v. Carhart majority smugly preening in papal mitres, with the dissenters looking on in dismay. The caption reads, "Church & State." How unfair. What if Auth had drawn devil's horns on the dissenting justices, with pitchforks thrown in for good measure? That would have been just as unfair.

This is more than a problem of anti-Catholic bigotry or even anti-religious bigotry. It brings to the surface a deeper problem. A critic of a judicial decision feels free to disregard out of hand the judge's stated reasons and to substitute his own "true" reasons, while providing scant justification for why the judge's stated reasons ought to be ignored. Rational argumentation becomes conspiracy theory.

Of course, some reasons are pretextual, but surely the critic bears the burden of proving pretext. Simply counting the avowed Roman Catholic justices on the bench and matching them with the Carhart II majority cannot be enough proof that the sole motive of religious duty animated their decision. It may, however, constitute proof of bias on the part of the critic.

Of course, this hermeneutic of suspicion is not limited to law and politics, but rather permeates much of the current discourse on a variety of matters. A dose of healthy realism never hurt anyone, but today's intellectual climate seems to encourage megadosing.

This Wasn't the First Time "Abortion Doctor" Has Appeared in the United States Reports

In her dissenting opinion in Gonzales v. Carhart & Gonzales v. Planned Parenthood, Justice Ginsburg complains about the language used by Justice Kennedy in writing for the Court: “The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Slip. Op., at 19. Undoubtedly, for many medical professionals who take seriously their obligation to “do no harm,” any association with a medical procedure that partially births a child only to then rip open its skull and vacuum out its brains might seem “pejorative.” But I doubt this is her point. Is the majority being “pejorative” in describing these individuals as “abortion doctors”? Are they demonstrating their hostility to Roe and Casey by using this term? If so, they have lots of company.

No less a group of anti-Roe zealots than NARAL has used the pejorative term “abortion doctor” to describe those doctors who perform abortions. Here’s one example. Hat tip to Ed Whalen at the Bench Memos blog.

More importantly, however, the offending term has also appeared at least twice in the pages of the United States Reports prior to Wednesday’s opinion. In Hodgson v. Minnesota, 497 U.S. 417, 419 (1990), the syllabus of the Court’s opinion (addressing a portion written by Justice Stevens and joined by Justice O’Connor) states that the waiting period at issue provides the family time “to inquire into the competency of the abortion doctor.” In Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997), the syllabus of the Court’s opinion describes the respondents as “upstate New York abortion doctors and clinics and an organization dedicated to maintaining access to abortion services.” Of course, these are merely the syllabi of the Court’s opinions, not the opinions themselves, and as every Supreme Court opinion warns: “The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.” Since 1989 the Reporter of Decisions for the U.S. Supreme Court has been a man named Frank D. Wagner. Of course, this begs the critical questions: Why Does Mr. Wagner oppose women's rights? What role did Karl Rove play in Mr. Wagner's appointment as Reporter of Decisions? More seriously, one wonders whether Justice Ginsburg objected to Mr. Wagner’s use of the term “abortion doctor” in the Schenck syllabus. Did Justice Stevens, who joined Ginsburg's dissent in Gonzales, object to Mr. Wagner's use of the term "abortion doctor" in the syllabus of Justice Stevens' opinion in Hodgson?

Though Justice Kennedy did not use the term “abortionist,” that phrase has appeared in Supreme Court opinions before. If “abortion doctor” is pejorative because it is not the professional’s proper title, one would reasonably assume that the term “abortionist” must be at least as pejorative and likewise illustrate a “hostility to the right Roe and Casey secured.” So who was the right wing anti-abortion zealot who would have used such a term? In Roe v. Wade, 410 U.S. 113, 142 (1973), Justice Blackmun noted the AMA’s historical condemnation of “abortionists” performing abortions in violation of state criminal laws. The nation’s abortionists undoubtedly have forgiven the offense.

Our Laffy-Taffy, Elastic Justice

Pity poor Anthony Kennedy, who surely must be waking up to the realization that being the “swing vote” on the Court sometimes just means you can’t win for losin’. Witness his Gumbyesque stretch across the aisle of the Court in Carhart v. Gonzales. Pulled from the right by Justices Antonin Scalia and Clarence Thomas, to whom he had to cater in order to keep his majority from splintering into a very unsatisfying three-judge plurality (been there-done that), and from the left by Justice Ruth Bader Ginsburg, who ardently horsewhips him for “disrespecting” Planned Parenthood v. Casey and Roe v. Wade. How to bridge the gap?

Step One: Placate Scalia and Thomas by assuming, hypothetically speaking, Casey is controlling authority, without really treating it as authoritative. “The principles set forth in the joint opnion in [Casey] did not find support from all those who join the instant opinion.” Slip op. at 14. Reminds me of the old joke about the economist who, stuck on a deserted island with only a can of beans, solves the problem by pronouncing, "First, assume a can opener." When was the last time the Court took this approach? “Assume Miranda v. Arizona was correctly decided. If it were, the defendant should not be on death row today, since he was not properly advised of his constitutional rights.” Sadly, this kind of unmoored “blue skying” seems to be par for the course in abortion jurisprudence, so let it go for now. Step Two: Pretend that “Whatever one’s views concerning the Casey joint opinion” (why can’t we all just get along?), a “central premise” of Casey was that “government has a legitimate and substantial interest in preserving and promoting fetal life.” Uh-oh, here she comes. Whack! “You’re refusing to take Casey and Stenberg seriously!” (Dissent at 3 - paraphrasing here.) Whack! “You said in Casey and Stenberg that we won’t legislate ‘basic principles of morality!’” (Id. at 15.) Whack! “You’re showing your hostility to reproductive rights by using right-wing code words like "baby” and “abortion doctor!” (Id. at 19) (Never mind that such terms are by no means confined to the Right – see Casey Mattox’s blog on this.) Even Justice Kennedy’s Step Three – Apologize to the Left by allowing that the door is wide open to “as-applied” challenges to the Act in situations where the “health exception” pertains – is too little, too late. By the time Justice Ginsburg is through with him, she’s made it pretty clear that it’ll be awhile before the Left allows him off the downstairs couch.

Justice Ginsburg completely misses the point here, which is, of course, that Casey is whatever Justice Kennedy makes it to be as the defining Fifth Vote. She can pretend all she wants that Casey’s disembodied Platonic meaning hovers penumbra-like over the Court, but we all know – including her – that Justice Kennedy made Casey, and he has now largely unmade Casey. All the old rules are new again in abortion jurisprudence: The People, through their state and federal legislatures, can express moral outrage and protect women and the medical profession by outlawing or regulating abortion procedures, and will be given deference instead of a “zero tolerance” approach when they do so. Most importantly, perhaps, the “reproductive rights” crowd will no longer be able to bring facial challenges to strike down abortion regulations or notice and consent laws on flimsy and hypothetical circumstances implicating risks to a woman’s health; they will be put to the proof in every instance

Is Casey a Lemon? Will Casey’s main lot in life (or walking death) be to suffer periodic exhumation, doomed to shuffle about at night, frightening abortionists and the reproductive rights gang? Time - and presidential politics - will tell. But the Casey of the Roberts Court is not the Casey of the last Court. Can Roe be far behind?

The Supreme Court's Use of History in Religion Clause Cases

George Fox University professor Mark David Hall has published a law review article entitled "Jeffersonian Walls and Madisonian Lines: The Supreme Court's Use of History in Religion Clause Cases." It is published in volume 85 of the Oregon Law Review, starting at page 563.

Hall writes that "[t]he primary purpose of this Article is to provide a systematic account of how Justices have used history to help them interpret the Religion Clause." Hall analyzed appeals to history in 115 Supreme Court cases. He observes that Justices are more likely to invoke history in Establishment Clause cases than in Free Exercise Clause cases. Justices most frequently cite the writings of Jefferson and Madison. Hall contends that liberals are slightly more likely than conservatives to invoke history.