The new configuration of Justices has been re-working the religion clauses from scratch in recent years, and that process has continued this term.
And there is the much-publicized matter of the cursin' cheerleader to consider.
We will contemplate those points in that order today. (The above image is of Mary Beth Tinker, the plaintiff in free-speech-for-minors litigation of more than 50 years ago -- photos taken than and now. her case came to the fore again during arguments this session, and we'll get to that.)
Freedom of the Press
Times v. Sullivan is a venerable Warren Court precedent. Most of my readers are likely familiar with it in at least general terms. But, to review: the Supreme Court decided in 1964 that defendants in defamation lawsuits brought by public officials may interpose a qualified immunity as a defense -- one is immune from libel liability in statements about a public official unless one has exhibited "actual malice," which is defined for this purpose as a reckless disregard of the truth.
The court almost immediately expanded that, so that the qualified immunity applies not just to allegedly defamatory statements about public officials, but to those against "public figures" as well. This is a somewhat slippery term, which has taken in a wide range of people over time. Essentially, anyone likely to be the subject of a non-fiction book or a front-page newspaper story is a public figure. That is precisely why the rule is beloved by newspaper and book publishers.
Two sitting Justices have indicated a willingness to reconsider Times v. Sullivan. Personally (and I'll just state this view dogmatically for our purposes) I think it is a fine decision that strengthens the underlying constitutional scheme by protecting the working press from what could be a barrage of lawsuits by the powerful who dislike scrutiny. I also believe that the extension to include "public figures" in general may have been a mistake. The reasons for cheering a summary judgment for defendant when the plaintiff is the City Commissioner of Montgomery, Alabama and the press may have misstated the precise number of police dogs he sicced on civil rights protesters don't really apply with the same force when the plaintiff is, say, television comedian Carol Burnett, and a scandal rag may have invented a tale of public drunkenness to titillate their readership.
Yet that would raise questions. What about people in the immediate family of a public official? They are generally considered public figures even if they aren't on the payroll. The Trump's cannot end-run press scrutiny and the qualified immunity by having Don Trump Jr. file the lawsuit.
Some day it will be appropriate for the court to review the "public figure" stuff. But not now. For now, let's just leave this body of law alone, okay troopers? It works well in some matters and the relevant celebrities have generally learned to deal with it in others.
But just a few days ago, wrapping up business for the year, the Supreme Court declined to take the case of Berisha v. Lawson. Shkelzen Berisha is the son of the former prime minister of the Republic of Albania. Guy Lawson is an author who wrote a 2015 book called ARMS AND THE DUDES, on the global weapons trade and the people who game it, including the plaintiff who, according to the book, was a central figure of the "Albania mafia." Berisha's lawsuit was explicitly aimed at having the court strike the "actual malice" standard.
Both Thomas and Gorsuch filed dissents from the court's refusal to grant the writ of certiorari. (If you try that link, you'll have to scroll down a bit to find it, but it is there.)
Gorsuch ends his dissent with, "I do not profess any sure answers. I am not even certain of all the questions we should be asking. But given the momentous changes in the Nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the 'safe deposit' of our liberties."
I think the pose of epistemological humility there is phony. I suspect that Gorsuch is perfectly sure of his "answers," and that this answers threaten harm to the rest of us.
The Religion Clauses
Amy Coney Barrett's very first opinion as a Supreme Court Justice came down in the case of South Bay v. Newsom. This decision came down in February. It arose out of the pandemic, and the rules that California created in its effort to stem the spread of the Covid-19 virus. Does one's right to attend a religious service, pursuant to one's belief that the act of gathering together is itself a crucial part of worship of the Supreme Being, trump the public health justifications for limiting the number of people who can be in close proximity at any given time during a pandemic?
The Court was split four ways. The three Clinton-or-Obama appointees formed a solid bloc. Justice Kagan, writing for that bloc, wrote, "if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a States pandemic response."
Among the conservatives, Justices Gorsuch and Alito (the same dynamic duo referenced above) took an expansive view of religious liberty as a trump card. They would have blocked California's public health limits completely. Alito was inclined to agree, BUT he would have stayed such a decision for 30 days to give the state a chance to prove that it absolutely musty have those restrictions in place. I'll include Alito within the same school.
The second school of thought among the GOP 6 is represented entirely by Chief Justice Roberts, who want to strike certain of the restrictions on church-going and uphold others. He said, "The State has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework. At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero...." seemed to him an abuse of its police powers.
The third school of thought among the GOP 6, and so on our count the fourth among the SCOTUS 9, consisted of Barrett and Kavanaugh. Given the procedural posture of the case, these two got their way. Barrett's opinion, joined only by Kavanaugh, is the opinion of the court. They contended the matter should be remanded for further proceedings in the courts, and that in those further proceedings the plaintiffs should have an opportunity to prove that no constraints are necessary. But in the meantime, as an interim matter, Barrett and Kavanaugh supported Roberts' split-the-difference measures: no outright ban on indoor worship, but capacity constraints and a prohibition on choral performances indoors would both be allowed.
Fulton v. Philadelphia
If all that sounds chaotic: it was. A case later in the term, Tandon v Newsom, declared religious gatherings within one of the participants private homes to be protected by the first amendment against Governor Newsom's meddling.
But we will skip past that and go to a free-exercise case that did not involve the pandemic at all: Fulton v. Philadephia. The amazing this about this case is that there was no dissent. The facts took on some of the hottest buttons in hot-buttoned 2021 America and the Chief Justice, through judicial diplomacy, managed to defuse them enough to mold an unanimous decision.
The foster care system in the City of Brotherly Love works with private foster care agencies. Philadelphia enters into standardized contracts with these agencies, and they place children with foster families. One of the private agencies is Catholic Social Services (CSS) which has been in this relationship with the city for more than half a century.
A newspaper story in 2018 raised the issue of that in time became this lawsuit. The story observed that the Archdiocese had taken the position that CSS would not certify same-sex couples. No same-sex couple in fact had applied for certification by CSS and been turned down -- they had gone to the other agencies available. But the newspaper story raised a hue and cry that the Archdiocese and by implication CSS were discriminating unlawfully against gay men and lesbians.
The City in due course informed the CSS that, unless it agreed to certify the same-sex couples, the City would no longer refer children to it for placement.CSS filed a lawsuit asking that the referral freeze be enjoined. We'll skip the rest of the procedural history and get right to opinion.
The Court held that the referral freeze was a violation of the free exercise clause because the policy does not satisfy the Employment Division v. Smith requirement of being both neutral and generally applicable.
C.J. Roberts wrote the opinion, joined by five justices. This bloc of six is, ideologically, all over the place. It includes a Clinton appointee, two Obama appointee, and two Trump employees (Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett). Roberts himself is a Bushie.
The other three Justices (Alito, Thomas, Gorsuch) authored two concurrence, and each of the three concurring Justices joined each of those opinions.
In the majority's view, the case turns, unlikely though this may sound, on the specific language of section 3.21 of the city's standard nut recently revised referral contract. This section says, "Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.”
That "sole discretion" language was the kicker. It meant, Roberts explained, that the rule stated just prior language is itself subject to arbitrary discretion on the part of the named officials and thus there is no "generally applicable" rule of the sort contemplated in Smith.
While the Big Six worked within the language of Smith to reach this result, the Other Three called for the rejection of Smith as precedent.
I will leave all this be, except for the observation that I am curious how this court would have decided this matter had it come before them as an "establishment" challenge rather than a "free exercise" challenge. I believe that it very well could have. If the city, in response to this decision, creates a policy friendly to religious foster agencies which in turn reject homosexual couples as plausible parents: will they state not be establishing such religions? Why not?
The cussing cheerleader.
But I get to conclude this four-part survey with a discussion of the word "fuck." How delightful.
Fuck fuck fuck fuck fuck. Spell it right! Don't say "fug" like Mailer characters.
I expect in another 30 years we (or those of you who happen to be alive then) will hear the word used in cheers. "Goooo wildcats, fuck the red foxes."
But for now, we have the case at hand, Mahanoy Area School District v. B. L., a Minor, by and through her father, Levy. This was an 8-1 decision, with only Thomas dissenting. The other 8 agreed that the school had no business punishing B.L.
The original draft of the Thomas dissent? An inside source tells me it was "Fuck this Court. I dissent!" Enough? Okay -- to the facts.
The minor, B.L., tried out both for a softball team and for a position on the Varsity Squad of her high school's cheerleaders. She received two "no" answers after those tryouts, although she was offered a spot with the junior varsity cheerleaders.
After receiving this news, B.L. used her smartphone, from a local convenience store, to send a message to her circle of social media (Snapchat) friends. She sent two images. In the first, she and a girlfriend with her at the convenience store displayed their middle fingers, with the caption, “Fuck school fuck softball fuck cheer fuck everything.”
We'll skip a lot of details here, too/ School administrators soon learned of B.L.'s comment, they punished her, and she brought this lawsuit.
Another famous case involving the speech of minors was Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969). The court ruled then that school control over student speech must be founded on a reasonable forecast of substantial disruption in the school's affairs should the speech at issue be allowed.
Here, as in Tinker, there is no good reason to be worried about substantial disruption. Do you, dear reader, believe that any among B.L.'s social media friends was NOT familiar with the word, or the accompanying finger gesture? If the answer is "no," why would there be a disruption? If the answer is "yes," somebody didn't know, then B.L,. has helped the school serve its pedagogical function. A "thank you" would have been nice.
Instead, I guess the administrators at Mahanoy High can go fuck themselves.
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