Steven G. Gey

Bio: Steven G. Gey is an academic researcher from Florida State University. The author has contributed to research in topics: Supreme court & Establishment Clause. The author has an hindex of 5, co-authored 26 publications receiving 85 citations. Previous affiliations of Steven G. Gey include Brigham Young University.

Free Will, Religious Liberty, and a Partial Defense of the French Approach to Religious Expression in Public Schools

Abstract: Despite current differences over a certain war in the Middle East, France and the United States share a common heritage of personal liberty that infuses the legal culture in both countries. Americans may not be quite as enthusiastic as their French brethren about the collectivist ideal of fraternitý, but the more individualistic principles of libertý and ýgalitý form the core of American conceptions of personal freedom and provide the central justification for constitutional limits on the exercise of governmental power. One particularly striking manifestation of the similarity between French and American conceptions of personal liberty is the approach to the relationship between government and religion adopted by both countries. Separation of church and state is the ostensible constitutional norm in both countries. In the United States, this approach is codified in the Establishment Clause of the First Amendment, which the U.S. Supreme Court has interpreted as requiring all government actions to reflect both a secular purpose and a secular effect.4 In France, this principle is codified in the constitutional declaration that "France shall be an indivisible, secular, democratic and social Republic."

The Procedural Annihilation of Structural Rights

Abstract: For several years the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. These obstacles take several forms, including restrictions on standing, restrictions on raising facial challenges to unconstitutional statutes, and an increasingly unwillingness to allow federal courts to infer remedies when necessary to enforce federal statutory or constitutional claims. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called "structural rights." The term "structural rights" describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that those who use the democratic process to achieve immediate political power do not perpetuate that power in ways that undermine the democratic structure of government in the long term. The negative effects on structural rights of the Court's recent limitations on judicial authority is important because the usual justification the Court gives for these limitations involves the need for judicial restraint and deference to the elected branches of government. This is essentially a claim that the exercise of judicial authority in these circumstances is antidemocratic. The central thesis of this article is that judicial restraint in the face of structural rights claims has exactly the opposite characteristic because in a case raising structural rights claims the current government is disempowered from doing certain things precisely to preserve the democratic structure of government. Deference to the elected branches of government in the name of democracy is therefore uncalled for if the elected branches of government are violating structural rights because those violations actually undermine democracy. Thus, the article concludes somewhat paradoxically that courts must be given the authority to enforce structural rights against the violations of those rights by the elected branches not in spite of democracy, but rather because of it.

Under God, the Pledge of Allegiance, and Other Constitutional Trivia

Abstract: A panel of the United States Court of Appeals for the Ninth Circuit created a furor recently when it ruled that the inclusion of the words "under God" in the official Pledge of Allegiance violates the Establishment Clause of the First Amendment. Responses to this ruling by politicians, the press, and legal academics were overwhelmingly critical. The unifying theme of many of these responses is that the claim against the "under God" language in the Pledge is trivial and therefore not the proper basis for an Establishment Clause ruling. This Article uses the Pledge controversy as a vehicle for investigating the concept of constitutional trivia in the Establishment Clause context. There are two variations on the argument that the "under God" controversy is trivial. The first variation asserts that the religious component of the Pledge has so little religious significance that it does not rise to the level of an Establishment Clause violation. The second variation acknowledges the religious significance of the "under God" language, but asserts that trivial religious exercises should be considered permissible exceptions. to the normal First Amendment rules. The problem is that neither variation on the triviality defense of the Pledge can be reconciled with a plausible reading of the factual background of the Pledge statute, or with the overwhelming thrust of the Supreme Court's Establishment Clause precedents. The triviality defense of the Pledge is therefore difficult to accept at face value. This defense should be viewed instead as a distorted reflection of the growing conflict over the most basic principle of Establishment Clause jurisprudence: Does the Constitution continue to mandate a secular government, or has the subtle sectarian dominance of government become an accepted constitutional fact?

The Procedural Annihilation of Structural Rights

Abstract: For several years the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. These obstacles take several forms, including restrictions on standing, restrictions on raising facial challenges to unconstitutional statutes, and an increasingly unwillingness to allow federal courts to infer remedies when necessary to enforce federal statutory or constitutional claims. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called "structural rights." The term "structural rights" describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that those who use the democratic process to achieve immediate political power do not perpetuate that power in ways that undermine the democratic structure of government in the long term. The negative effects on structural rights of the Court's recent limitations on judicial authority is important because the usual justification the Court gives for these limitations involves the need for judicial restraint and deference to the elected branches of government. This is essentially a claim that the exercise of judicial authority in these circumstances is antidemocratic. The central thesis of this article is that judicial restraint in the face of structural rights claims has exactly the opposite characteristic because in a case raising structural rights claims the current government is disempowered from doing certain things precisely to preserve the democratic structure of government. Deference to the elected branches of government in the name of democracy is therefore uncalled for if the elected branches of government are violating structural rights because those violations actually undermine democracy. Thus, the article concludes somewhat paradoxically that courts must be given the authority to enforce structural rights against the violations of those rights by the elected branches not in spite of democracy, but rather because of it.

Freedom of Connection - Freedom of Expression: The Changing Legal and Regulatory Ecology Shaping the Internet

Abstract: Over the first decade of the 21st Century, the Internet and its convergence with mobile communications has enabled greater access to information and communication resources. In 2010, nearly 2 billion people worldwide – over one-quarter of the world’s population – use the Internet. However, during the same period, defenders of digital rights have raised growing concerns over how legal and regulatory trends might be constraining online freedom of expression. Anecdotal accounts of the arrests of bloggers, the filtering of content, and the disconnection of users have sparked these concerns. However, they are reinforced by more systematic studies that provide empirical evidence of encroachments on freedom of expression, such as through the increased use of content filtering.This report provides a new perspective on the social and political dynamics behind these threats to expression. It develops a conceptual framework on the ‘ecology of freedom of expression’ for discussing the broad context of policy and practice that should be taken into consideration in discussions of this issue. This framework structures an original synthesis of empirical research and case studies of selected technical, legal and regulatory trends. These include developments in six inter-related arenas that focus on: technical initiatives, related to connection and disconnection, such as content filtering; digital rights, including those tied directly to freedom of expression and censorship, but also indirectly, through freedom of information, and privacy and data protection; industrial policy and regulation, including copyright and intellectual property, industrial strategies, and ICTs for development; users, such as focused on fraud, child protection, decency, libel and control of hate speech; network policy and practices, including standards, such as around identity, and regulation of Internet Service Providers; and security, ranging from controlling spam and viruses to protecting national security.By placing developments in these arenas into a broad ecology of choices, it is more apparent how freedom can be eroded unintentionally as various actors strategically pursue a more diverse array of objectives. The findings reinforce the significance of concerns over freedom of expression and connection, while acknowledging countervailing trends and the open future of technology, policy and practice. Freedom of expression is not an inevitable outcome of technological innovation. It can be diminished or reinforced by the design of technologies, policies and practices – sometimes far removed from freedom of expression. This synthesis points out the need to focus systematic research on this wider ecology shaping the future of expression in the digital age.

Female secondary school leaders: at the helm of social justice, democratic schooling and equity

Abstract: Purpose – The purpose of this study is to explore the leadership experiences of four female secondary principals (two Black, two White) in one south‐western state to create significant discourse for understanding school leadership nested in complex social, political and cultural contexts. These women confronted education challenges of social justice, democracy, and equity in their schools.Design/methodology/approach – The philosophical tradition of phenomenology was chosen as the qualitative methodology for this study “which is understood to be a concern for human meaning and ultimately for interpreting those meanings so that they inform our practice and our science”. As a secondary analysis of a specific finding (i.e. female leaders who exemplified a values‐orientation around issues of social justice in their leadership practices) from the original study the lived experiences of four female secondary school leaders were further explored.Findings – All four women engaged in leadership praxis by: transform...

One Nation Under God? Religion and the Politics of Education in a Post-9/11 America:

Abstract: For American public schools, the interplay between religion and public policy has been rather volatile, thanks to both state and federal constitutions mandating an ever shifting degree of separation between church and state, yet permitting free religious expression. Some of the most intense political disputes in the past 40 years have involved educational issues such as the teaching of evolution or intelligent design within public schools, publicly funded vouchers for attendance at religious institutions, state-sanctioned prayer within public schools, and the rise of sexuality education. This article seeks to map some of the contemporary features involved with religion and the politics of U.S. education by focusing on (a) recent court decisions, (b) the policy agendas of the current Bush administration, and (c) curricular issues. The article closes by focusing on a few of the larger issues relating to religion and education in a highly pluralistic and religiously fluid society.