Dispatches from the Creation Wars

By the way, today is the end of the 2006/2007 Supreme Court term. What that typically means is the release of the last few pending rulings, usually very close and controversial ones. Two cases I’m particularly interested in are Hein v. Freedom From Religion Foundation and Morse v Frederick. The first one is an important standing doctrine case. AP reports that the court denied taxpayer standing for establishment clause cases by a 5-4 vote, with Alito writing the majority opinion. The opinion is not yet available on the Court’s website, though, so I haven’t seen it. Not a good outcome though.

The second case is the infamous Bong Hits 4 Jesus case. Sandefur emailed me to say the ruling went the wrong way (in favor of the school rather than the student) but I have not seen either the ruling or the breakdown, only that Roberts wrote the opinion. More news as I get to see the rulings and more analysis over the next couple days as I read them, but it’s looking like it’s not a good day judicially.

Comments

#1 nicole
June 25, 2007

The NYT is reporting both of these as well. The only detail on Hein v Freedom from Religion Foundation is that David Souter wrote the dissent. Both of these are very depressing.
#2 Jeb, FCD
June 25, 2007

This seems appropriate:

Welcome my son, welcome to the machine.
Where have you been?
It’s alright we know where you’ve been.
#3 dogmeatib
June 25, 2007

I’m really not happy with judges right now.

I know of a case where the judge ruled that discrimination had occurred, but that the employer responsible wasn’t responsible because, get this, they said they didn’t know.
#4 W. Kevin Vicklund
June 25, 2007

Hmmm… how is this going to affect the recent North Dakota church/state case on juvies? The named plaintiffs were all using taxpayer status as standing.
#5 Ed Brayton
June 25, 2007

I have the ruling now and I’m going through it and will likely have a critique of it up tomorrow morning. It’s actually a plurality opinion. Scalia filed an opinion that Thomas joined agreeing with the outcome but disagreeing with the majority’s reasoning and urging that the Court should overturn Flast v Cohen and do away with taxpayer standing entirely. Kennedy also filed his own concurrence, but I haven’t read it yet. Souter wrote the dissent with Breyer, Ginsburg and Stevens joining him. That’s a lineup one can expect fairly consistently.
#6 Gerard Harbison
June 25, 2007

It looks like the Hein ruling is pretty narrow. While it’s a deplorable decision, an overturn of Flast v Cohen would have been worse.
#7 Joe Shelby
June 25, 2007

According to a summary by CNSNews.com on the Bong Hits case:

The Justices decided that schools have leeway to fight anything deemed to be a pro-drug message, since that is part of their mission. In this case, the justices said the school and school officials cannot be held liable for forcing Frederick to take down his sign, even though he was not standing on school property.

*sigh* – kids never get any rights these days…or ever.
#8 Greg
June 25, 2007

It looks like, however, that the Alito concurrence is controlling and that if the message can be “plausibly be interpreted as commenting on any political or social issue” then it would be allowed.

So, if the banner had said, “Don’t criminalize ‘Bong hits 4 Jesus,’” that would have been okay.
#9 Ahcuah
June 25, 2007

I saw a news report that Thomas advocated overturning Tinker: school kids have no First Amendment rights. Quoting Thomas:

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

Yeah, and if black civil rights were to be enforced, one would have expected 19th-century schools to have respected those rights, too. Instead, it took to at least 1954.
#10 plunge
June 25, 2007

Now this is sort of interesting. I wonder now if a child that mentions some creationist falsehood can be suspended for promoting lies, since teaching science is a critical part of the schools mission.

Something tells me that the court would find the exact opposite result (which I’d agree with). But it certainly would be interesting to see how they manage to justify the hypocrisy.
#11 Joe Shelby
June 25, 2007

plunge: that’s exactly why the Christian right was on the ACLU’s side in this case. They were there defending a students right to mention Jesus, regardless of any alledged drug interpretation. Already there are too many cases of “Choose Life” and “Jesus Saves” t-shirts being kicked out of school by administrators ignorant of what the first amendment means.
#12 Rasputin
June 25, 2007

I just read the summary of the plurality decision in Hein, and will have to wait to read the whole thing so please correct me if I’m wrong here, but doesn’t the argument sound like this:

FFRF has no standing because it’s the Executive branch rather than Legislative and if Joe Taxpayer had standing here then he’d have standing to sue over every speech anytime anyone in the Executive branch mentioned God at all and that would be ridiculous.

I’m no legal scholar or anything but that sounds like an utterly ridiculous argument.
#13 Ed Brayton
June 25, 2007

Rasputin:

You’re close. I’ll have a full analysis of the ruling up in the morning. It’s worse than I thought, as is the ruling in Morse. A dark day indeed.
#14 Chris Berez
June 25, 2007

I heard the news about the Bong Hits 4 Jesus case on the radio on my way to pick up lunch.

Needless to say, I was pretty disappointed.

I’ll have a full analysis of the ruling up in the morning. It’s worse than I thought, as is the ruling in Morse. A dark day indeed.

Oh great, now I feel worse.
#15 kehrsam
June 25, 2007

The real battle for the Supreme Court the last few decades has not really been liberal vs conservative so much as pitting state powers vs personal liberties. My main concern over Roberts and Alito was not their conservatism – anybody Bush sent up would be conservative – but the blind deference they tend to give government action.

Today is a perfect example of that. Liberty took some huge hits this morning. Like Ed, I’m going to take a day or two to sort through everything.
#16 Joe
June 25, 2007

Pot is illegal. Period. Freedom of speech probably doesn’t include a message supporting drug use in a school. Hello, McFly?

Oh, and I think it was set up as freedom OF religion. These atheist pigs don’t care what good the ‘religious’ organizations are doing, they just hate them for what they believe.
#17 Robert
June 25, 2007

Wow, joe, if freedom of speech doesn’t include the ability to say that certain laws are wrong, then how are you supposed to support changing them? Also I think recent history proves you have it backwards:

Those religious pigs don’t care what good the “secular organizations” are doing, they just hate them for what they believe.

Examples would be just about anything the ACLU does, or any of the polls that show that atheism is the most untrusted group in America.

But hey, you’ve done a great job refuting our points and our logic. We just can’t compete. Please, a round of applause for joe!
#18 Scott
June 25, 2007

[clap], [clap], [clap]
#19 Royale
June 25, 2007

I could almost, ALMOST agree with the Court if the facts were different. Say if the banner was at a school pep rally. But the fact that it was off the school grounds at an unrelated activity takes it to 11.

But still, even at a school pep rally, I thought the religious reference would have made it safe from school thought-control.

I suppose kids won’t be allowed to wear any “WINE SHOTS 4 JESUS” t-shirts. As Joe’s logic would hold, kids aren’t supposed to drink alcohol, therefore they cannot express their opinions on say, the eucarest.
#20 raj
June 25, 2007

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

This is stupid. The proponents of the 14th amendment, in order to get it ratified, specifically assured that it would not apply to laws against inter-racial marriage. Voila! A century later, the Supreme Court held that it did–and it required finding such laws unconstitutional.

One wonders whether Thomas would have dissented in the Loving case.

Mr. Brayton, you have often come to Thomas’s defense. How would you defend his opinion here?
#21 Ed Brayton
June 25, 2007

raj wrote:

Mr. Brayton, you have often come to Thomas’s defense. How would you defend his opinion here?

I have only rarely come to the defense of his conclusions; I disagree with him about 90% of the time. What I have defended, and will continue to defend, is his consistency, his clarity and his intelligence. But I will surely not defend his opinion; indeed, I already have a post written to post in the morning blasting it.
#22 Ahcuah
June 25, 2007

kehrsam wrote:

My main concern over Roberts and Alito was not their conservatism – anybody Bush sent up would be conservative – but the blind deference they tend to give government action.

Don’t forget Rehnquist’s definition of a strict constructionist:

A judge who is a “strict constructionist” in constitutional matters will generally not be favorable inclined toward claims of either criminal defendants or civil rights plaintiffs–the latter two groups having been the principal beneficiaries of the Supreme Court’s “broad contstructionist” reading of the Constitution.

A chip off the old block.
#23 Ed Brayton
June 25, 2007

Alito and Roberts are both very much in the Rehnquist mold, which is quite distinct from the Scalia/Thomas mold. Alito and Roberts are very conservative but they’re not ideologues. They don’t have the kind of overarching legal theory to apply that Scalia and Thomas do. The Hein case today is a perfect example. Alito and Roberts were on the controlling opinion, which took the wrong position but on very narrow grounds that stuck close to precedent. Scalia and Thomas concurred in the result but were throwing rhetorical bombs at both the majority and dissenters and wanted a wholesale overturning of precedent to eliminate taxpayer standing entirely.
#24 Frito
June 25, 2007

I have the feeling that Alito and Roberts not overturning Flast was part of a deal to get Kennedy on board. Of course if that was the case, one would expect Kennedy would have written the opinion. But then again I expect the worst of Alito.
#25 Rasputin
June 25, 2007

“These atheist pigs don’t care what good the ‘religious’ organizations are doing, they just hate them for what they believe.”

This atheist pig doesn’t give a rat’s rectum what you believe and merely hates you for being a raving bigot and others for pushing their close minded anti reason, anti reality fantasy based ideology on others.

In short, I care infinitely more about what you do than what you believe.
#26 Rasputin
June 25, 2007

“These atheist pigs don’t care what good the ‘religious’ organizations are doing, they just hate them for what they believe.”

This atheist pig doesn’t give a rat’s rectum what you believe and merely hates you for being a raving bigot and others for pushing their close minded anti reason, anti reality fantasy based ideology on others.

In short, I care infinitely more about what you do than what you believe.
#27 Ed Brayton
June 25, 2007

Frito wrote:

I have the feeling that Alito and Roberts not overturning Flast was part of a deal to get Kennedy on board. Of course if that was the case, one would expect Kennedy would have written the opinion. But then again I expect the worst of Alito.

You may well be right about keeping Kennedy on board, but I don’t see why that says anything bad about Alito that Kennedy didn’t write the opinion.
#28 AEB
June 25, 2007

I had hoped that these cases would both go the other way, but having lost, and having read both opinions, I have a hard time understanding how you can say “It’s worse than I thought…as is the ruling in Morse.” From my read, Morse is a consistent and reasonable decision.

The Morse decision basically said that at a school activity, the school can restrict disruptive speech or speech where there is an important school interest involved(use of illegal drugs by students). It says that if the speech had expressed a political, religious, etc. message, Frederick would have been protected. However, the objective message was pro-illegal drug use (regardless of whether that was Frederick’s intent). Had it said “the war on drugs is wrong” or “D.A.R.E. is an stupid waste of money”, fine, protected. This seems pretty reasonable.

The Hein decision is just stupid (how’s that for analysis?). However, as noted by Ed, it clearly could have been worse in regard to Flast. I can live with small hits like this until the tide turns, as long as we dodge the bigger bullets.
#29 Ahcuah
June 25, 2007

Ed said:

Alito and Roberts are both very much in the Rehnquist mold, which is quite distinct from the Scalia/Thomas mold.

I notice that Orin Kerr at the Volokh Conspiracy points us to Jack Balkin saying much the same. With you three luminaries lining up that way, I have a hard time disagreeing.

Switching to the comment by AEB:

It says that if the speech had expressed a political, religious, etc. message, Frederick would have been protected.

Call me suspicious, but I think this was a results-oriented ruling (i.e., they knew the result they wanted and rationalized the reasoning). Had the sign read differently and more politically, I suspect they would have found a different reason to uphold the school administrator.
#30 Andrew Wyatt
June 25, 2007

I’m a little miffed about how quickly all the justices seemed to have dismissed the question of the principal’s sphere of influence in Morse. The majority opinion brushed it aside huffily, and a glance at the other opinions suggests that no one else raised it.

I can even appreciate Alito’s point in his concurrence about the school needing to retain its power to maintain order and censor provocative statements that advocate illegal acts, while at the same time preserving the rights of student to have open discussion and debate about drug policy. Were the banner unfurled during a mandatory pep rally or assembly, I might even agree with Alito.

But the kid wasn’t on school property. The event wasn’t mandatory (indeed, the students technically had the day off from school.) The crowd he was standing in was a mixed group of students, faculty, and outsiders. How far does a student have to stand from a principal on a public street on his day off for the principal’s custodial power over the student to vanish?
#31 Andrew Wyatt
June 25, 2007

Another thing: Is preventing a school from looking bad on television really an interest that overrides a student’s free speech rights?
#32 Ed Brayton
June 25, 2007

I think the court could have made a very narrow ruling that allowed the school to discipline for disruptive behavior during a school event (whether it’s an official school event is a very close question, but I can go with them on that). The problem is that they went with a much broader basis for the ruling, one based explicitly on the content of the speech. That’s the danger in this ruling, one clearly recognized by Alito and Kennedy, who wrote a separate concurrence to note that they’re with Roberts as long as the ruling is not interpreted as touching any political statements. But I don’t think one can draw that line at all, much less draw it coherently.
#33 Kenn Gividen
June 25, 2007

The Freedom From Religion Ruling is here:

http://www.lawmemo.com/sct/06/Freedom/

and here:

http://ffrf.org/news/2007/SCdecision062507.pdf