Showing papers in "William and Mary Bill of Rights Journal in 2010"

Fundamentalist Challenges to Core Democratic Values: Exit and Homeschooling

Abstract: This Essay explores the choice many traditionalist Christian parents (both fundamentalist and evangelical) make to leave public schools in order to teach their children at home, thus in most instances escaping meaningful oversight. I am not primarily concerned here with the quality of academic achievement in the core curricular areas among homeschoolers, which has been the subject of much heated debate.1 Instead, my comments focus on civic education in the broadest sense, which I define primarily as exposure to the constitutional norm of tolerance. I shall argue that the growing reliance on homeschooling comes into direct conflict with assuring that children are exposed to such constitutional values. I begin with a brief social and legal history of homeschooling in the United States during the twentieth century and then discuss the dominance of religiously motivated parents among homeschoolers in contemporary America. Section ? shows that homeschoolers make broad claims for exemption from state oversight that are not warranted by the constitutional doctrine on which they rely. In Section ??, I argue that the state's interest in educating children for life in a pluralist democracy trumps any asserted parental liberty interest in controlling their children's education. Finally, in Section IV, I argue that where parents do not live together and share legal custody of their children, the state should articulate a preference for formal schooling over homeschooling when the parents disagree. I urge states to engage in far more stringent oversight and regulation of homeschooling than exists in any state at present, arguing that there is no constitutional bar to doing so and a compelling state interest in additional oversight tools, especially in the arena of civic education concerning normative democratic values about tolerance and diversity. I. HOMESCHOOLING A. A Brief Legal History The rise of formal schools and the adoption of compulsory school laws transformed schooling in nineteenth-century America. Beginning in the second quarter of the nineteenth century, the common school movement led by Horace Mann and other reformers resulted in the widespread availability of free public schools.2 Homeschooling virtually disappeared in the United States by the early twentieth century as states (beginning with Massachusetts in 18523 and ending with Texas in 19 15)4 adopted and enforced laws requiring parents to make their children literate and, later, to send their children to a formal school for at least part of every academic year.5 The constitutionality of one brand of compulsory school law reached the United States Supreme Court in 1925. In Pierce v. Society of Sisters, the Court overturned a compulsory school law that parents could only satisfy by enrolling their children in public schools, barring the use of sectarian or other private schools.6 The Court held that parents must have the right to choose among approved ways of satisfying the compulsory education law, but in doing so it underscored that the case did not challenge "the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require . . . that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare."7 The Court has never fleshed out the extent of the state's power to regulate independent schools. Today, the vast majority of states impose curricular requirements on private schools, and these requirements appear to be largely unchallenged.8 Similarly, the Court has never had an occasion to consider the reach of the state's authority to regulate homeschooling , which is completely unregulated in states such as Alaska, and in other states subject to minimal requirements, ranging from mandatory notice to the state that the parents intend to homeschool to reporting and testing requirements regarding mastery of core curricular subjects such as reading and math. …

The Sit-Ins and the State Action Doctrine

Abstract: By taking their seats at "whites only" lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and most of the American public, the question of whether the nondiscriminatory logic of Brown should apply to public accommodations involved a consideration of the role of public accommodations in social life, the dignitary costs of exclusion, and the values served by the protection of private choice and associational rights within the commercial sphere. From the perspective of lawyers, judges, and lawmakers, the relevant question centered on a doctrinal issue that had been under considerable pressure in the two decades preceding the sit-ins: the "state action" requirement of the Fourteenth Amendment. At the time of the sit-ins, many assumed that resolution of the issue demanded a reconsideration of the state action doctrine. Yet, when given the opportunity, neither the Supreme Court, in a series of cases arising from the sit-in protests, nor Congress, in framing the public accommodations provision of the Civil Rights Act of 1964, took this path. As a matter of official constitutional interpretation, the state action doctrine survived the civil rights movement, modified somewhat but retaining the same basic form it had when the Court first defined it in the late nineteenth century. In this Article, I explain why the sit-in movement, which proved remarkably successful at changing attitudes, practices, and statutes, ultimately failed to change constitutional law. My analysis of the resilience of the state action doctrine draws on recent scholarship on extrajudicial constitutionalism, even as it challenges some of the premises that underlie this scholarship. INTRODUCTION 768 I. THE SIT-INS AS A CONSTITUTIONAL CHALLENGE 776 A. Civil Disobethence as a Constitutional Claim 777 B. State Action as a Normative Concept 779 C. The State of the State Action Doctrine, I960 781 D. Public Accommodations and the "Logic" of Brown 786 II. THE SIT-IN CASES IN THE SUPREME COURT 791 A. From Burton to Bell 792 B. Bell v. Maryland 795 C. Civil Disobethence and the Supreme Court 798 III. THE CIVIL RIGHTS ACT OF 1 964 AND CONGRESSIONAL INTERPRETATION OF THE FOURTEENTH AMENDMENT 802 A. The Supreme Court and Section 5 803 B. The Kennedy Administration and the Fourteenth Amendment ...... 809 C. The Fourteenth Amendment in Congress 814 D. Title II in the Supreme Court 818 E. Legislative Constitutionalism in the Shadow of the Supreme Court . . 820 CONCLUSION 823 INTRODUCTION When African American students sat down at segregated lunch counters across the South in the spring of 1 960, they presented a profound challenge to the custom and law of white supremacy. It would be hard to imagine a form of protest that more powerfully demonstrated the flagrant and perverse injustice of the Jim Crow South. …

Privatizing Family Law in the Name of Religion

Abstract: In pockets across the world, a movement has quietly taken hold to allow fundamentalist1 religious norms, rather than state law, to govern family matters like divorce and inheritance. Many of these religious norms depart significantly from the state's background rules protecting individuals. Nonetheless, fundamentalist religious understandings are given the force of law, either by treating them as binding judgments arrived at through arbitration or by delegating jurisdiction to religious groups to decide family disputes, with nominal state oversight. This Essay explores the risks to two traditionally vulnerable groups, women and children, when the state delegates its traditional oversight of the family to religious authorities.2 To surface these risks, this Essay draws on two lived experiences of religious deference around the world. Specifically, this Essay examines the eighty-five Sharia courts operating in Great Britain today, which apply Islamic, not British, law to divorce and inheritance.3 It also examines the system of shared jurisdiction in Western Thrace, a section of Greece where three Mufti decide family disputes for a Muslim minority of 1 10,000 people.4 While this Essay spotlights experiments to enforce Islamic rather than civil understandings of family matters, numerous scholars have advocated for deference to the religious understandings of Christian, Jewish, and other faith groups as well.5 In both places, the civil law supplanted by fundamentalist religious norms would provide considerably more protection to individuals in two periods of great need, upon divorce and the death of a spouse. As this Essay documents, these protections for the vulnerable are hollowed out when harsh religious understandings displace the state's more protective rules, whether in fundamentalist Islamic families or fundamentalist families of other faiths. Drawing on systems of deference operating today, Part I shows how women at divorce stand to lose custody of adolescent children and face near certain poverty if certain schools of Islamic law govern the proceeding. Part II assesses how a woman's ability to exit a marital relationship, especially a violent one, may be affected by religious deference. This Part argues that religious deference undercuts the state's ability to police family violence. Part ?? then shows that upon a spouse's death, women face equally grave and devastating results under Islamic law. The wealth a woman would otherwise receive upon her husband's death under civil law shrivels under Islamic law to a mere fraction of the decedent's estate, leaving many women financially at risk. Part IV rejects two articulated justifications for schemes of religious deference despite the inequitable treatment of women - namely, that a woman's natal family will support her financially when the husband does not and that women have voluntarily accepted these outcomes. Policymakers considering schemes of deference in their own countries should consider these inequities before giving effect to extreme religious views that will trap some women in poverty or abusive relationships.6 I. LIVED EXPERIENCES OF RELIGIOUS DEFERENCE Two systems of religious deference operating today provide a snapshot of the risks to women and children in such systems. These lived experiences in Great Britain and Western Thrace demonstrate poignantly that removing state protections from the family is fraught with peril. A. Great Britain 's Embrace of "Islamic" Divorce In 2008, the British government "quietly sanctioned the powers for sharia judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence."7 This system of religious arbitration took root despite a firestorm of controversy that erupted in early 2008 when the Archbishop of Canterbury called for a "plural jurisdiction" in which Muslims could choose to resolve family disputes in religious tribunals or in British courts. …

Making Sense of Facial and As-Applied Challenges

Abstract: INTRODUCTION In the conventional account of the basic principles of constitutional adjudication, constitutional challenges can be sorted into two distinct categories: "facial" challenges and "as-applied" challenges.1 A facial attack is typically described as one where "no application of the statute would be constitutional."2 In contrast, courts define an asapplied challenge as one "under which the plaintiff argues that a statute, even though generally constitutional, operates unconstitutionally as to him or her because of the plaintiffs particular circumstances."3 This facial and as-applied distinction provides more than a simple descriptive account of two different results that a court might reach in a given case. Instead, the categories are believed to form the foundation for a set of substantive rules that determine when a court may employ one type of challenge or the other - when a court may strike down a statute in its entirety or only overturn the application of the statute in the case at hand.4 Under these rules, the law strongly favors as-applied challenges on the grounds that they are more consistent with the goals of resolving concrete disputes and deferring as much as possible to the legislative process.5 Facial challenges, on the other hand, should be used sparingly and only in exceptional circumstances.6 Perhaps the most well-known, succinct, and controversial7 formulation of this idea was the Supreme Court's statement in United States v. Salerno that a "facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully" and will only succeed if a litigant can "establish that no set of circumstances exists under which the Act would be valid."8 This account of facial and as-applied challenges is by now a familiar part of the constitutional landscape and is generally accepted in the courts.9 Nevertheless, some of the most basic details regarding the characteristics of the facial and as-applied challenges categories and, in particular, how the preference for as-applied challenges actually operates, remain surprisingly unclear.10 For instance, do the rules regarding facial and as-applied challenges concern substantive constitutional law by limiting the adoption and use of constitutional tests that might lead to the facial invalidation of statutes?1 1 Or do they relate exclusively to the remedial doctrine of severability,12 which comes into play only after a court has applied the relevant constitutional test and found a violation?13 Or both?14 Is the key to distinguishing between facial and as-applied challenges the extent to which the court relies on the specific facts in the case at hand to reach its decision?15 If so, when is it appropriate for a court to consider something other than those specific facts? Is the choice between a facial and as-applied challenge one that the litigant makes when she brings her claim,16 or is it one that a court makes when it addresses her claim? Neither the case law, nor the academic literature, provides a satisfactory answer to these problems.17 This Article argues that these important questions remain unanswered because categorizing constitutional cases into "facial" and "as-applied" challenges, and relying on these categories to shape doctrine and inform case outcomes, is an inherently flawed and fundamentally incoherent undertaking. This is because the fate of a statute in the face of a constitutional challenge depends on distinct considerations - specifically, the relevant substantive doctrine and the remedial severability rules - that cannot be reduced to a single inquiry or set of rules. Conflating these independent concepts with one another under the "facial" and "as-applied" rubric has only served to confuse each and obscure the real issues that animate the outcome in a given case. Moreover, the as-applied and facial dichotomy has contributed to the increasing lack of clarity across constitutional law by creating an inconsistent and unwarranted presumption against the adoption of robust constitutional tests on the grounds that they might result in facial invalidation of statutes. …

Family Values, Courts, and Culture War: The Case of Abstinence-Only Sex Education

Abstract: In the context of a symposium on "Families, Fundamentalism, & the First Amendment," the topic of abstinence-only sex education is a natural. In teaching that sex should be limited to "mutually faithful monogamous relationship[s] in [the] context of [heterosexual] marriage,"1 abstinence-only sex education promotes a specific normative vision of what families should be. Because this vision is so recognizably part of a religiously conservative worldview, the policy might be described as an expression of "fundamentalism."2 Completing the circle, any government policy born of "fundamentalism" and supported by "fundamentalists" might be thought to implicate, and perhaps to violate, the First Amendment's Establishment Clause. The link to the First Amendment raises the hope - or fear - that courts can declare an end to this particular battle in the culture wars. Under current law, public schools may not use overtly religious approaches to teaching abstinence and the government may not directly fund overtly religious abstinence education by private social service providers.3 The Supreme Court's decision in Bowen v. Kendrick,4 however, appears to suggest that facially secular abstinenceonly programs raise no Establishment Clause problems.5 The legal status quo, then, seems to be: "Just say no to sex" is OK; "Jesus wants you to say no to sex" is not. Nevertheless, it takes little imagination to see even facially secular abstinence programs as an expression of the values of the Religious Right. Accordingly, a number of commentators have suggested that all abstinence-only sex education violates the Establishment Clause.6 If this is so, the logical implication is that courts can and should bring an end to controversies about sex education by declaring victory for the sexual left.7 A complete assessment of the Establishment Clause issues regarding abstinence education is beyond the scope of this Essay.8 My limited goal here is to shed light on one common argument that plays an important role in debates about sex education. In a nutshell, the argument is that abstinence education is so ineffective that it can only be explained as an effort to promote a religious vision of sexual morality.9 The beauty of the argument is that it invites us to view debates about sex education as contests between pragmatic, scientific promoters of public health and ideologues who privilege (religious) values over science (and, perhaps, over common sense as well). This formulation avoids two alternative framings that would be less advantageous to abstinence critics. The sex education debate is not just about policy effectiveness, where we would expect school boards, departments of education, and legislators to have the last word. Nor is the debate simply a clash between religious and secular visions of sexual morality. Courts might take sides in that debate under the banner of the Establishment Clause, and (if the Establishment Clause means anything) there are instances where courts must say the secular is preferred to the religious as a matter of constitutional principle.10 But school silence about condoms seems a far cry from teaching students that Jesus died for their sins, and courts are and ought to be nervous about declaring that the Constitution systematically prefers secular, postreligious norms of conduct over traditional, religiously identified ones.11 "Science over values" is a more palatable creed than "Modern, secular conduct norms over traditional, religious ones." My goal in this essay is to cast doubt on the "science versus values" framing of the argument. I make four primary claims. The most basic is that sex education is inescapably "about values" for both the sexual right and the sexual left. A full appreciation of this truth leads, I suggest, to three additional points. First, the federal government should not attempt to dictate how state and local governments approach sex education. Second, courts should be reluctant to use the Establishment Clause to settle sex education controversies. …

Introduction: Perspectives on Religious Fundamentalism and Families in the U.S.

Abstract: The Institute of Bill of Rights Law sponsored this symposium as a forum (1) for exploring the nature and exercise of fundamentalist religion in the U.S., (2) for better understanding fundamentalist families, and (3) for examining the role of the state when religious exercise, family autonomy, and individual rights collide. The group of academics that gathered at the William and Mary School of Law in November 2009 comprised some of the nation's foremost scholars of the First Amendment's religion clauses, family law, and American religious history and culture. Their contributions, first at the symposium and again in this issue, help us to think more deeply about absolutist beliefs in a pluralist society, to better evaluate current conflicts and anticipate others that might loom, and to participate in devising better paths forward. The essays here pursue three broad themes. The first one is the meaning and import of "fundamentalism" itself - or at least the American version of it. Randall Balmer, Andrew Koppelman, and Frederick Gedicks turn their attention to this question. Randall Balmer, a professor of American religious history at Barnard College, Columbia University, provides essential historical and cultural context in Fundamentalism, the First Amendment, and the Rise of the Religious Right} Balmer describes early nineteenth-century evangelical Baptists' enthusiastic support of Thomas Jefferson and of the separation of church and state embodied in the First Amendment. Balmer then explains how American fundamentalism emerged in the early twentieth century as a conservative response to the rise of theological liberalism in mainline Protestant denominations. And he notes the irony of contemporary efforts by the Religious Right (whose own success was, of course, made possible by the "free market of religion" guaranteed by the First Amendment) to collapse the distinction between church and state through efforts including advocacy of prayer in public schools, taxpayer vouchers for religious schools, faith-based initiatives, and religious symbols and monuments in public spaces. Frederick Gedicks takes a philosophical approach to understanding American fundamentalism in God of Our Fathers, Gods for Ourselves: Fundamentalism and Postmodern Belief1 He begins his analysis with the postmodern condition. The (our) postmodern condition is defined by the absence of "metanarrative"; in other words, the failure of philosophical, scientific, or religious approaches to provide a comprehensive and universally acceptable explanation of life or the world. Gedicks views American religious fundamentalists as having rejected postmodernism and the pluralism it implies. Instead, they believe that they possess the only truth. While religious fundamentalists are not unique in making this sort of claim, Gedicks argues that what distinguishes them is that "they know this truth and the God that guarantees it with such reliability and confidence that they are impelled to structure society around it." American fundamentalism thus embraces the alignment of government with "true religion" - not as a nation that goes so far as to suppresses dissent, but as a Christian nation that tolerates dissenters. Gedicks himself embraces the postmodern condition and implicitly chides fundamentalists not only for their certitude, but also for the hubris inherent in their attempts to imbue American secular society with public religion. In his essay The Nonproblem of Fundamentalism? Andrew Koppelman shows greater faith than do Bahner and Gedicks in American fundamentalists' commitment to the separation of church and state. Koppelman describes fundamentalism as essentially "a strategy of biblical interpretation." To the extent that there is a connection between fundamentalists and a particular political commitment (i.e., the policies of the conservative right), such a connection is contingent - not inevitable. Koppelman argues against using fundamentalism as a meaningful category when examining issues of public concern. …

The Election Period and Regulation of the Democratic Process

Abstract: In the Bipartisan Campaign Reform Act of 2002, Congress introduced regulation of "electioneering communications" - broadcast communications that name a candidate, target the relevant electorate, and air within a specified time before an election. In doing so, Congress shaped an election period, a temporal zone preceding the election in which the government would have enhanced authority to regulate the democratic process. While upheld on a facial challenge in 2003, the electioneering communications framework was effectively struck down as applied to restrictions on corp orate political advocacy by the Supreme Court in 2007. Taking stock of these developments, this Article presents a detailed consideration of the election period model and its treatment by the Court. A survey of election law reveals a divide: current doctrine generally treats the vote as so important that the government must regulate it, and political speech as so important that the government cannot regulate it. These commitments clash in the context of political speech surrounding the election. I develop the election period concept as a means of approaching this tension and challenge the Court's emphasis on the vote itself in validating regulation, advancing a model of the election period as not only the time in which voters make electoral choices, but also as the primary setting in which the representative relationship is constructed through the interaction between candidates and the people that surrounds the election. I argue that the election period model articulates a regulatory framework that blurs the sharp distinction between the domains of politics and elections and better recognizes the interest in protecting the representative process as well as the vote. In doing so, the Article calls attention to fundamental premises underlying the regulation of campaign finance, assessing how the structure of campaign finance law coheres with a broader conception of the democratic process. INTRODUCTION 534 I. THE ELECTION PERIOD MODEL 539 A. Representative Democracy and the Vote 540 B. The Election Period 544 II. THE REGULATORY LINE: EXPRESS ADVOCACY AND ELECTIONEERING COMMUNICATIONS 550 A. The Pre-BCRA Framework- Issue Advocacy and Express Advocacy 551 B. BCRA and the Regulation of Electioneering Communications ...... 554 C. WRTL and the Return of the Express Advocacy Line 556 III. GOVERNMENT INTERESTS IN REGULATING THE DEMOCRATIC PROCESS . 560 A. Regulatory Interests before WRTL 561 1. Preventing Corruption and its Derivative Interests 561 2. Austin's Different Type of Corruption 562 3. Protecting the Act of Voting 563 4. McConneWs, Interests in Preventing Undue Access and Promoting Democratic Self-Government 565 B. Articulating Regulatory Interests in WRTL 568 IV. POLITICAL SPEECH AND THE VOTE 573 A. Regulation of the Vote and Political Speech 573 B. Framing these Rights in Election Speech Cases 575 V. REGULATING CORPORATE POLITICAL ADVERTISING IN THE ELECTION PERIOD 578 A. Corporate Election Advertising and the First Amendment ......... 578 B. The Election Period Approach in the Corporate Advocacy Context . . 585 CONCLUSION 588 INTRODUCTION Constitutional doctrine governing campaign finance regulation has long relied on an array of lines marking permissible and impermissible limitations on political activity. …

Challenges to State Anti-Preference Laws and the Role of Federal Courts

Abstract: On November 5, 1996, the people of California passed Proposition 209 in an initiative election, which subsequently led to the addition of article 1, section 31 to the California Constitution1 That provision prohibited various state actors from "discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting"2 In 1998, the people of the State of Washington passed a similar provision, known as 1-200, in a similar referendum, which led to a new section being added to that state's statute books3 In 2006, the people of the State of Michigan passed another similar provision, Proposal 2, which led to the addition of article 1 , section 26 to the Michigan Constitution4 Finally, the Nebraska polity passed Initiative 424 in 2008, which added article 1, section 30 to the Nebraska Constitution5 Each of these popularly enacted provisions, which for ease of reference I will refer to as anti-preference laws, were deemed to prohibit race-conscious decisionmaking by the state that might be permitted under federal law, including the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution6 That is not the feature that this Article focuses on, however Rather, it focuses on the fact that these laws generally can be enforced in state court by private individuals in civil lawsuits seeking damages and other kinds of relief As a consequence, when these provisions have been challenged in federal court as a violation of federal law in a pre-enforcement challenge, there is an obvious problem Precisely who should be sued? That there is no obvious answer to this question - and that the absence of an obvious answer creates difficult jurisdictional problems - is the issue that this Article addresses The questions about jurisdiction all revolve around the same basic fact: these laws are not, by and large, enforced by the executive branch of state government and even when they are, the primary tool of enforcement is still lawsuits brought by private individuals in which state judges enforce the law And there is not a great deal that a lower federal court can do to restrain the behavior of unknown private individuals and state court judges Of course, the anti-preference laws are not the only privately enforceable laws out there Many standards of behavior are set by "privately-enforced" laws, ie, laws that can be enforced in a lawsuit brought by a private citizen Defamation lawsuits under state common law7 and lawsuits alleging misstatements in violation of section 1 1 of the Securities Act of 1933 8 are just two of many examples one could list The same jurisdictional problems would arise were the constitutionality of these laws challenged in a pre-enforcement proceeding As a general rule, they are not challenged in preenforcement proceedings, but rather by defendants sued for damages9 Part I of this Article sets forth the relevant provisions of the anti-preference laws and the usual arguments that are used to claim that such laws violate federal law I do not assess those arguments in any great detail (That is, whether those arguments would be successful if asserted by defendants in a case alleging that they violated an anti-preference law is not something addressed at length here) In Part ?, I review more carefully the enforcement provisions of the anti-preference laws, and consider the problems with the two injunctions that have been issued so far by federal judges in cases challenging anti-preference laws In Part ??, I address the basic jurisdictional doctrines that present obstacles to challenges to privately enforceable laws being heard in federal court In Part IV, I consider the application of these jurisdictional doctrines to the antipreference laws, examine various possible defendants that can be sued in federal court, and explore the problems that each presents given the jurisdictional doctrines at issue …

Fundamentalism, the First Amendment, and the Rise of the Religious Right

Abstract: The First Amendment must have been very much on Thomas Jefferson's mind on New Year's Day, 1 802 As he sat down to catch up on his correspondence, the President came across a letter dated October 7 of the previous year and signed by Nehemiah Dodge, Ephram Robb ins, and Stephen S Nelson on behalf of a group of Baptists from Danbury, Connecticut1 A year before that, when Jefferson was running against the incumbent President, John Adams, Jefferson's heterodoxy was very much an issue, especially among the Federalists in New England,2 who feared the loss of Congregationalism as the preferred religion in Connecticut and Massachusetts3 In response to the campaign invective directed against Jefferson, Baptists, Presbyterians, and other dissenters had rallied to his defense The occasion of the letter from the Baptists in Danbury, Connecticut, was to express support for the President's efforts to extend religious disestablishment to the states "Our sentiments are uniformly on the side of religious liberty," the Baptists wrote, "that Religion is at all times and places a matter between God and individuals; that no man ought to suffer in name, person, or effects on account of his religious opinions"4 Earlier that same day, Jefferson had received an unusual entourage at the White House While Jefferson was spending his days at Monticello, he had befriended a Baptist neighbor, John Leland, who became one of Jefferson's most fervent supporters5 Leland moved to Cheshire, Massachusetts, in 1792 and continued his ministry among the Baptists there, many of whom had come from Rhode Island6 Leland enthusiastically supported Jefferson's election in 1 800, rallying the town of Cheshire behind him7 Early during Jefferson's first term, Leland sought to demonstrate that not all of New England opposed the Virginian The Baptist preacher came up with the idea of presenting the President with a local product of domestic arts as a token of the town's support and affection8 Some of the residents of Cheshire, Massachusetts, had come from Cheshire, Connecticut, a town known for its cheese-makers Leland directed that all of the locals in Cheshire, Massachusetts, collect the milk from their cows on a single day, July 20, 1801, prepare the curds, and bring them to the farm of Elisha Brown Jr9 Brown's large cider press, with some modification, provided a cheese hoop, four feet in diameter and eighteen inches tall 10 Leland specifically directed that no milk from Federalist cows be allowed, "lest it should leaven the whole lump with a distasteful savour"11 As the whey was being pressed out of the hoop, Leland blessed the cheese, dedicated it to the nation's chief executive, and led the townspeople in the singing of a hymn12 The cheese bore the Jeffersonian motto, "Rebellion to tyrants is obethence to God"13 A month after the pressing, the round of cheese weighed in at 1,235 pounds14 Additional curds had been sufficient to produce another three rounds, each weighing seventy pounds 15 By early December, the "Mammoth Cheese," as it was known, was placed on a sled and carried to Hudson, New York, where it was conveyed by barge first to New York City and then (accounts differ) on to Baltimore and Washington16 Leland and a friend, Darius Brown, accompanied the cheese, either in the same conveyance or by parallel route; Leland, who had long experience as an itinerant minister, preached to authences along the way17 The December 30, 1801 edition of the National Intelligencer and Washington Advertiser recorded the arrival of the Mammoth Cheese: "Yesterday the cheese, made in Massachusetts to be presented to the President, was brought to the city in a wagon drawn by six horses"18 On the morning of New Year's Day, 1802, Leland presented the cheese to the President, "as a token of the esteem we bear to our chief Magistrate," along with an effusive letter of support from the people of Cheshire, Massachusetts19 The declaration included appreciation for the Constitution and its "prohibition of religious tests to prevent all hierarchy …

Where Do We Go from Here? Handgun Regulation in a Post-Heller World

Abstract: INTRODUCTION A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.1 Debate over the meaning of these twenty-seven words has run rampant for centuries. The conflict has revolved around the basic meaning of the Second Amendment: does it protect an individual's right to own a gun, or does it merely extend as far as was necessary to maintain the state militias in 179 1?2 In June 2008 the Supreme Court directly addressed the individual versus collective right question in District of Columbia v. Heller.3 The case involved gun laws in Washington, D. C. that made it a crime to carry any unregistered firearm, but prohibited the registration of handguns.4 The D. C. laws also required all lawfully owned firearms in the home to be unloaded and disassembled.5 The plaintiff, Dick Heller, a special police officer at the Federal Judicial Center, was "authorized to carry a handgun while on duty," but was denied a permit to have his handgun in his home.6 He challenged the laws as an unconstitutional restraint on his Second Amendment right to keep and bear arms.7 Speaking to the actual meaning of the Second Amendment for the first time in history,8 the Court ruled that "[t]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms."9 This seemingly clear determination, however, left open many questions about the extent of this newly-recognized individual right.10 Federal, state, and local laws regulating gun ownership abound in this country. 1 1 While the Court proclaimed that the Heller decision does nothing to undermine regulations prohibiting "the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,"12 the establishment of an individual right to own a gun opens the door for gun rights advocates to challenge the constitutionality of state regulations that limit that right. This Note will examine a few areas of state firearm laws that are likely to be addressed in the cases following Heller. Part I of this Note will briefly discuss the nature of the right established by Heller and the likelihood that the Court will incorporate the Second Amendment, applying it to the states. It will argue that under Court precedent, the Second Amendment qualifies as a fundamental right that should apply to the states as well as the federal government. Part II will argue that the acknowledgment of an individual right to gun ownership, and the language used in Heller, indicate the Court's intent to adopt a standard of strict scrutiny when evaluating future challenges to gun regulations. Part III will examine the areas of gun regulation that are most vulnerable to constitutional challenges under strict scrutiny, including discretionary permitting systems for the concealed carrying of weapons, and laws that designate public colleges and universities as gun-free zones. I. INCORPORATION While the Court's decision in Heller recognized an individual right to bear arms,13 the scope of the case limited the Court's opinion to the Second Amendment's applicability to action by the federal government.14 Because Washington, D. C. is under federal jurisdiction, the Court was not ruling on state action.15 In 1937, in Palko v. Connecticut,16 the Court blazed a new trail in constitutional law by establishing that, under certain circumstances, the rights protected under the Bill of Rights would also apply to the states.17 However, without this "incorporation," the text of the Bill of Rights limits its protection to actions by the federal government.18 The Court has never taken explicit steps to incorporate the Second Amendment against the states.19 In fact, past Supreme Court cases have explicitly limited the Second Amendment's reach to the federal government. …

Government Identity Speech and Religion: Establishment Clause Limits After Summum

Abstract: This Article offers in-depth analysis of the opinions in Pleasant Grove v. Summum. Summum is a significant case because it expands “government speech” to cover broad, thematic government identity messages in the form of donated monuments, including the much-litigated Fraternal Order of Eagles-donated Ten Commandments. The Article explores the fine distinctions between the new “government speech doctrine”— a defense in Free Speech Clause cases that allows government to express its own viewpoint and to reject alternative views—and “government speech” analyzed under the Establishment Clause, which prohibits government from expressing a viewpoint on religion, and from favoring some religions over others. The Court’s decision, to characterize all public monuments as expressing “government-controlled” messages which reflect municipal identity, should impact the Establishment Clause calculus. Using social meaning theory, I show how the Culture Wars have transformed the message of governmental religious displays, and how Summum has eliminated the donor’s ambiguating role, which played a part in Justice Breyer’s Van Orden concurrence. The Article also serves a valuable function by contesting claims that Summum has eliminated the Establishment Clause endorsement test, or that it dangerously allows government to convert any and all private speech to its own, thus deflecting Free Speech claims. My interpretation shows that the decision is multi-faceted and contextual; it relies on government’s expressive intent, an inherently communicative medium, and viewers’ reasonable attributions regarding monument speech. As shown below, the Court’s exposition on the unfettered indeterminacy of monuments’ content either has been misconstrued, or renders the opinion internally inconsistent. I conclude by proposing a compromise solution: it requires a new level of transparency for the history-based rationales used to explain existing public religious displays, and closer scrutiny of any new government religious displays that are initiated in this religiouslydivisive time. Finally, my proposal is illustrated by application to Ten Commandments monuments and the Salazar v. Buono narrative. * Assistant Professor of Law, John Marshall Law School (Chicago) (mdolan@jmls.edu). For helpful comments and encouragement, I would like to thank Caroline Mala Corbin, Marc DeGirolami, Steven Goldberg, Leslie Griffin, Jessie Hill, Walt Kendall, Bruce Ledewitz, Chris Lund, Helen Norton, Larry Rosenthal, Michael Seng, Winni Sullivan, and Spencer Waller. Additional thanks to Deans John Corkery and Ralph Ruebner for institutional resources and support, Dan Hynan for support, and Gina Adduci for research assistance.

Huppert, Reilly, and the Increasing Futility of Relying on the First Amendment to Protect Employee Speech

Abstract: INTRODUCTION Advocates of expanded employee speech rights can be divided into two camps: those who have examined the issue as an employment law matter deserving a statutory solution,1 and those who have focused on the constitutional implications.2 The Supreme Court's ruling in Garcetti v. Ceballos,3 has prompted a flood of commentary on the constitutional aspect of the problem. The Court's ruling that a prosecutor's speech was not protected by the First Amendment rested on the flawed proposition that when individuals speak pursuant to the duties of their employment, they are not speaking as citizens . 4 The problems inherent with the Court' s line-drawing have been brought into acute relief by the attempts of lower courts to apply Garcetti' s "pursuant to duties" test, most noticeably in the current circuit court split over whether a police officer testifying before a grand jury is speaking in fulfillment of his duties as an officer or his duties as a citizen.5 Critics oiGarcetti have rightly derided the decision for reasons both philosophical6 and policy-driven.7 However, these reasons apply just as readily to private-sector employees, who have even less free speech rights at work than their public sector counterparts.8 While many critics have proposed constitutional solutions for protecting public employee speech rights,9 the Constitution is severely limited as a vehicle for protecting employee speech.10 This Note will argue that the complicated balancing of interests inherent in the employer-employee relationship could better be accomplished by a statutory scheme that would have the significant advantage of protecting the speech of all employees, not just those in the public sector. Part I of this Note will provide a brief history of the constitutional protections for public employee speech to demonstrate how case law arrived at its current point. It will culminate with a discussion of the circuit court split created by the Third Circuit Court of Appeals' decision in Reilly v. City of Atlantic City11 and the decision of the Ninth Circuit Court of Appeals in Huppert v. City of Pittsburg}2 In Part II, the Note will argue that the constitutional jurisprudence in this area has become untenable. It will go on to discuss all of the problems inherent with attempting to protect employee speech through constitutional means, paying particular attention to the exclusion of private employees from those protections. Part III will discuss the potential of current statutory and state common-law protections for both public and private employees to serve as a model for a comprehensive federal statute. Finally, in Part IV, the Note will propose, as a solution, a comprehensive federal statute to protect employee speech. Part IV will discuss some of the drawbacks to and counter arguments against comprehensive statutory protection for employee speech, but conclude that a federal statute offers the best hope for preserving speech rights within both the public and private workplace. I. FIRST AMENDMENT PROTECTIONS FOR EMPLOYEE SPEECH A. History of First Amendment Cases For a long time, the speech of public employees was no more protected against employer retaliation than that of private-sector employees. The prevailing attitude of courts was most famously illustrated by Oliver Wendell Holmes's observation in McAuliffe v. Mayor of New Bedford,13 that "[a policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."14 That line of thinking first began to erode during the middle of the twentieth century. In response to McCarthy era anticommunist measures, the Court began to limit the government' s ability to place restrictions on public employment15 Over a series of cases, the Court held that public employers could not force employees to swear oaths of loyalty16 or deny employment because of prior political affiliations.17 Pickering v. Board of Education1* was the first case to recognize that a public employer' s retaliation against a public employee for making political statements was a violation of the employee's First Amendment rights. …

God of Our Fathers, Gods for Ourselves: Fundamentalism and Postmodern Belief

Abstract: Introduction: But Which One? God is back. -John Micklethwait & Adrian Wooldridge (2009)1 Western culture has been obsessed with the "death of God" at least since Nietzsche.2 During the 1900s, this took the form of a prediction - mostly by intellectual elites - that modernization had so preempted belief that the latter would eventually disappear entirely.3 That prediction turned out to be spectacularly wrong in the United States,4 if not elsewhere,5 so here the obsession has lately shown itself as denial: God is not only not dead, he' s not even sick. Popular and academic literature is now filled with triumphant - and regretful - expositions ofthe contemporary vibrance and vitality of religion.6 God has cheated death (or, at least, Nietzsche). Or has he? There is the God whose death was widely predicted, and there is the God who today is alive and well, but they're not the same God. The God who died is the God of Christendom, who bound together Western society with a universal account ofthe world that did not survive the advent of postmodernism; this God, indeed, is dead.7 The God who remains alive is the one adapted to postmodernism; the vitality ofthat God is on display in contemporary American religion, especially in the spirituality movement.8 The most pressing religious problem now confronting the world is posed by believers who refuse to recognize the postmodern condition that has brought about the demise ofthe first God and the rise ofthe second; I will refer to such believers as "fundamentalists."9 All three of these phenomena - the death of God, his rebirth in postmodernity, and his remnants in fundamentalism - are manifest in recent religion clause decisions, though there are also recent suggestions that the Court may be poised to take a fundamentalist turn.10 I will close with a suggestion linked to that most traditional of believing virtues, humility.11 I. THE DEMISE OF METANARRATIVE God is dead. -Friedrich Nietzsche (1882)12 Reports of God's death have been greatly exaggerated in the United States, and probably everywhere else except Western Europe. To be sure, the number of selfdeclared unbelievers in the United States has dramatically risen in the last half century, from about three percent of the population in the 1950s to between eleven and sixteen percent now, but still remains low relative to the number of believers.13 Much of the reported increase in unbelief, moreover, might be attributed to a mistake in statistical analysis: For years, those who declined to state a religious affiliation were categorized as unbelievers, whereas it now appears that many of these folks actually believe in "God or some higher power."14 Indeed, some data suggest that as many as twenty-one percent of self-identified atheists actually believe in "God or a universal spirit,"15 which means that many unbelievers are more confused than unbelieving. So was Nietzsche wrong? Some philosophers - notably Martin Heidegger - maintain that the "death of God" is a metaphor signifying the end of metaphysics.16 The "death of God" is the demise of "metanarratives," to use Lyotard' s term17 - that is, "general accounts of human nature and history that purport to be independent of time, place, culture, and other contextual influences, and that determine how knowledge and truth are constituted."1 8 Metanarratives purport "to grasp the true structure of reality, the laws of history, and the method for acquiring knowledge about the only 'truth.'"19 "God is dead," then, does not mean that there is no God, but rather that there is no metaphysical or other foundation that enables humankind to demonstrate obj ectively the essential character of the world. The death of God marked the birth of postmodern life - that is, life without hope for certain and demonstrable knowledge about how or what the world really is. Like the death of God, postmodernity is an understanding of the world both powerful and misunderstood. …

Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling

Abstract: The scene has become indelible in our cultural consciousness: a suspected criminal is pulled away from the mean streets, dragged by his collar "downtown" and tossed into a neon-lit room. He hands over his belongings with a menacing smirk and sneers while the camera captures a mug shot that would make his mother shudder. But then the pad of ink comes out, and a flicker of uncertainty crosses his face. As each print is taken, we see him replaying the night before, straining to remember just what he had touched and with which hand, cursing himself for neglecting to wear gloves.1 In just the past year, federal courts have begun to grapple with whether we should add anew step to this iconic scene: whether DNA sampling, like fingerprinting, should become a routine part of booking procedures upon arrest. The first courts to rule on the constitutionality of arrestee DNA statutes have split on the issue. A United States District Court in Pennsylvania2 and the Court of Appeals of Minnesota3 have ruled that arrestee DNA sampling statutes are an unconstitutional encroachment on Fourth Amendment privacy rights. Conversely, a District Court in California,4 in a decision recently affirmed by the Ninth Circuit,5 and the Virginia Supreme Court6 have ruled that DNA sampling represents the natural next step, from routine fingerprinting, in identification technology, and is, thus, constitutional. While these rulings are merely opening salvos in what seems likely to become a broad judicial discussion of arrestee DNA sampling,7 they effectively outline the probable parameters of the constitutional argument. The courts upholding arrestee DNA sampling statutes have relied heavily on the argument that DNA sampling is merely a harmless "technological progression" from fingerprinting8 - no more intrusive and no more objectionable - in order to circumvent Fourth Amendment concerns.9 This analogy certainly makes intuitive sense, but with a close analysis of the differences between DNA and fingerprint testing, both procedurally and substantively, the analogy falls apart. Our intuitive acceptance of fingefrinting as a routine part of criminal booking stems from the simplicity the process promises. The guilt, and resultant fear of detection, we project on the arrested rogue described above stems from a basic linear logical progression: if the man is guilty, fingerprint evidence offers a tangible - some would say indisputable10 - link between an individual's body and the physical evidence left at a crime scene.11 The opposite, then, also becomes intuitive: if he has nothing to hide, he has nothing to fear.12 These same intuitions undoubtedly inform our cultural feelings about the new "great science of identification,"13 DNA evidence, which has quickly developed an even stronger air of infallibility than fingerprinting in the public consciousness.14 But the establishment, almost a century ago,15 of fingerprinting as a part of routine booking procedures had little to do with these cultural intuitions.16 Rather, routine fingerprinting arose out of a legitimate law enforcement need to definitively identify criminal suspects during an era when identity could easily be disguised.17 The analogy between DNA sampling and fingerprinting ignores this history, and the fact that no similar need for DNA sampling exists today. Furthermore, the "technological progression" argument ignores the obvious conclusion that with "progression" comes legitimate substantive differences between the two types of evidence, and the intrusions on privacy those differences represent.18 A fair and full analysis of these two key differences between DNA sampling and fingerprinting undermines both frameworks by which courts can find a suspicionless search "reasonable" under the Fourth Amendment.19 Moreover, in ignoring these important differences, the technical progression argument becomes wholly reliant on cultural intuitions. The line between the merely accused and the legally guilty is continually blurred by cultural perceptions, and our courts have historically gone to great lengths to, at least in the courtroom, counteract this blurring. …