Some news on the First Amendment front—from the U.S. Supreme Court!

June 16, 2014 • 12:26 pm

Reader Aelfric, an attorney, called my attention to a new U.S. Supreme Court decision that, surprisingly (given the court’s composition), upholds the separation of church and state. I’ll simply reproduce, with permission, the email he sent me. Granted, it’s only one case, and I’m always worried about the Court’s commitment to the First Amendment, but it’s good news nonetheless:

I wanted to write you because First Amendment establishment issues seem to be very much on your mind lately (with good reason) and especially with regard to public school graduations. That being the case, I wanted to note a bit of good news that happened this morning but is likely to fly under the radar, so to speak.

The United States Supreme Court denied certiorari in Elmbrook School District v. Doe, meaning the decision by Chicago’s own Seventh Circuit Court of Appeals remains intact. This is a very good thing.

The underlying facts are easy enough: a suburban Milwaukee school district chose not to have its graduation in the gym, as was the custom, but rather to hold the ceremony in a local non-denominational church. For obvious reasons, some people had a problem with this. The local district court held that doing so was not unconstitutional; though I confess I have not read the district court opinion, it apparently relied on the fact that no prayer or other religious activity was coerced. The church was just a structure.

Thankfully, the Seventh Circuit Court of Appeals reversed this decision, noting that if a school can’t create a pervasively religious environment, neither can it lease one for school functions. The decision is available hereThe court even noted, somewhat unusually,  that secular belief systems can offer the same benefits as religions (after the usual platitudes about religion, of course).

I occasionally post on your website as Aelfric, and if you’ve ever noticed such comments, you may know that, as an attorney I am very pessimistic about our court system, especially in this particular arena. As such, I had mentally noted this case when certiorari was filed, and had a nasty feeling it would be a 5-4 decision overturning the Seventh Circuit. To my surprise and delight, the Supreme Court this morning denied certiorari, meaning the case won’t be heard and the decision below stands.

I highly recommend reading Scalia’s dissent from denial (joined by Thomas, because of course) which can be found in today’s orders (it is the very last section of that document). It’s yet another telling look into Scalia’s mindset, in which he likens offense taken at religious imagery in a church to his own dislike of rock music and Stravinsky (and I kind of like Le Sacre du Printemps!). Anyway, I will take up no more of your time, I just felt the need to convey this minor victory to someone, and you seemed apropos.

Scalia and Thomas, then, didn’t have any problem with holding graduation in a church, but were overruled by their colleagues. Just for grins, here’s that part of Scalia’s dissent. (The court’s decision is just the first line.)

Picture 1

UPDATE:  Reader Pliny the in Between has made this cartoon for his site Pictoral Theology:

Toon Background.030


91 thoughts on “Some news on the First Amendment front—from the U.S. Supreme Court!

    1. And they play a lot of Stravinsky on public buses?

      But even if he did and they did, he’s missed the point. Government agencies are not supposed to impose religious practice on citizens. I don’t know why this is so hard to grasp.

      1. Yep. He’s missing the point of his own analogy, which is that while it would be legal for the guy next to him to listen to Stravinsky on his earphones, even if Scalia has to hear it, it would be illegal for the bus driver to play church services over a loudspeaker.

        Nobody is restricting bus rider freedom here, Scalia. It’s the bus drivers that are the law’s concerns.

        1. I think Scalia is referring to when the bus driver plays the radio, which happens, at least, in my (much) smaller city. Moldy-oldie classic rock is what we get.

    2. I wonder how Scalia would have reacted several years ago when violinist Joshua Bell showed up at L’Enfant Plaza Metro station in downtown DC with his violin and proceeded to perform a concert for the patrons as a busker. Only one of the patrons recognized him.

  1. Is Scalia finally losing it? I wonder. This is such a silly, petulant little complaint and doesn’t make much of a point except to whine (whinge).

      1. Yeah, although I strongly disagree with nearly everything Scalia says, he has been, in the past, at least logical and forceful. This is just drivel. Which seems a change to me.

  2. When I read the First Amendment I note that while not disfavoring religion, the document is explicitly silent about “favoring” (privileging) religion. Other than providing its unfortunate tax exempt status, of course. Shoulda seen the abuse inevitable in that well intended provision, fellers. Some 18th Century Joel Osteen-type got inside your heads on that one, I suspect.

    1. Tax exempt status of churches is not mentioned in the constitution as far as I know. I think its just a traditional IRS thing.

  3. Judge Scalia is being disingenuous, to say the least. It is not aversion to religion displays that causes the first amendment to be invoked here; it is the attempted endorsement of religion by representatives of the United States government. Because, as Judge Scalia should well know, such endorsement goes against the Constitution.

    I do not deny the right of religious people to climb on a soapbox in the park and start proselytizing. It annoys me to no end, as Stravinsky’s brilliant music annoys Judge Scalia, but I am very glad that our society allows free speech in public. That is clearly not the point, Judge Scalia knows it, and his statement is misleading.

    1. Exactly. Scalia is pretty open about his contempt for the First Amendment and his willingness to turn us all over to theocrats. Private individuals publically discussing religion or wearing a t-shirt proclaiming that “Jesus is Lord” on the bus is obviously not the same as the government hiring people to proselytize on the bus or using public funds to pay for “Jesus is Lord” posters on the bus.

    2. Judge Scalia watches Fox News and reads the Washington Times. He’s regurgitating talking points.

  4. IIRC, renting-a-church-as-structure is still legal. The church (and the school) simply have to put some reasonably minimal effort into keeping the service secular. So, put a sheet over the big cross and don’t have the priest do an invocation at the ceremony. These guys didn’t do that sort of minimal separation stuff, which is why the circuit court found it unconstitutional.

    1. Agreed. I have a hard time imagining that I’d choose hard wooden bleachers in a hot, cramped gym over padded seats in a spacious, air-conditioned church, as long as no one was going to subject me to religious services against my will. My simply walking into the building would not (despite my wife’s claims) cause the holy water to boil out of the font and lightning to strike me from the altar.

        1. Presuming you don’t mean the invisible imaginary Jesus in the sky, so I assume you mean the carved depiction on the cross in front? I think of that as a novelty item, kind of like a bobblehead doll. Hell, my mother-in-law has a bobblehead doll of herself, which is much more distracting than one of a bearded hippie.

          1. Thanks Kirth, you’ve given me todays great idea for a new religion.
            The Chapel of the Bobblehead Jesus.
            The faithful sit around with their hands on an unstable spindle-legged table with a bobble head Jesus in the centre. Works kinda like a Ouiji board. The faithful ask Jesus perplexing questions like ‘Should I give more to Pastor Kevin’s ministry?’
            then Jesus nods ‘Yes’

          2. When I was 5 years old, I loudly asked my parents, at a family wedding, “who’s t-man?”. I had learned the alphabet on Sesame Street & t-man would probably make a good character.

            1. TORTURE MAN!
              Even the Count can’t count the ways that Torture man can bring god’s blessing to the little ones.

  5. Too bad there isn’t some way to give Scalia a specialized Stravinsky earworm. And if he hates Stravinsky, Penderecki should give him fits.

    1. I would go full score for Scalia. Non-stop Stockhausen, Xenakis, and Takemitsu. I do wish for him to be strained into reasoned submission.

    1. If he had a traditional catholic education, it’s what the nuns and priests did to him in the first grade that caused the damage.

  6. Scalia is such a jackass. It’s funny how the Constitution and amendments don’t mention music, which seems to be an affront to him. He demonstrates that he wants control over everyone. His theism is just another facet of that.

    Oh horrors, listening to music you don’t, like. Poor thing. To equate this to being forced to obey a religion that claims to be some truth and claims that all who don’t believe are worthy of eternal torture and death is ludicrous and shows how simply ignorant and stupid Scalia et al are.

    1. I wish we could find another word to replace “offended” for these incidents. It is derived from the concept of these being legal “offenses” but it does have the connotation that the objector is merely being prissy and miffy.
      What makes me angriest about these school incidents is that the school is complicit in undermining MY right as a parent to raise my child in my chosen religious beliefs. Fundies, (who are usually the ones behind these incidents) don’t think that Catholics, Presbyterians, Methodists, Quakers, etc are “true” xtians. They want to proselytize to kids from these denominations to convert them to their fundie beliefs.
      Fundies are outraged when a public school teaches evolutionary science because it is interfering with their “parental rights” to raise their kids as CreoIdiots, but have no compunction about undermining the rights of parents who don’t subscribe to their religious beliefs.

      1. another word to replace “offended”
        Isn’t ‘butthurt’ the one? Jerry uses it in certain contexts, and there’s even a form for reporting it when it happens.
        Oh sorry, on another reading I see you’re looking for a word without the connotations of being prissy and miffy. Affronted, scandalised… it’s hard to get away from those connotations. Is it even possible to use the adverb ‘righteously’ without blatant irony or hypocrisy any more?

        1. No doubt it sounds (“miffy”)^3, but how about “hangnailed”? As in someone “gets a hangnail,” and that’s it for at least today – no way can s/he can follow through and persevere on a commitment or bear up under critique or scrutiny.

  7. So, the day when Congress begins sessions with Stravinsky music exclusively; and when the federal government endorses or subsidizes Stravinsky’s music over that of other composers; and when the communities who prefer other composers to Stravinsky are discriminated against and underrepresented in government; and when Stravinsky lovers receive tax-exempt status simply because they love Stravinsky; and when the general consensus among the uneducated is that the founding fathers wished this country to be devoted exclusively to Stravinsky; and when a brief look at history reveals intolerance to the point of violence by Stravinsky lovers against lovers of other music…then on that day I’ll give a shit about Scalia’s opinions on music.

    It’s not what government allows and tolerates that matters. What matters is what government endorses and favors.

  8. I doubt that of Scalia proclaimed his dislike of Stravinsky that pro-Stravinsky citizens would threaten and bully him. Seem this is what religion does. This is why it is best to be neutral (among other reasons we’ve already mentioned).

    1. Yes, imagine if he started to receive threatening phone calls and local business refused to serve him and the state would not allow him to marry another Stravinsky hater, then he might have a better appreciation for government neutrality in matters of religion.

    2. Actually, I’m sorely tempted to fly to D.C. and carry a big ol’ boom box into the next SCOTUS session and belt out 110 dBs of The Rite of Spring (especially that heavy percussive section).

      1. Never mind the boom box; this is the perfect excuse for the National Symphony (or an unofficial assemblage of its members) to do a flash mob on the front steps….


  9. Scalia seems to be regarded as a brilliant jurist, but, perhaps due to my ignorance of law, I don’t see it.

    1. Scalia’s is, or perhaps was, a formidable judicial mind. Though in my opinion, his real strength has always been his legal prose. He used to have some small sense of judicial restraint–for instance his critical vote and commentary in Texas v. Johnson, 491 U.S. 397 (1989), or his own decision in Kyllo v. United States, 533 U.S. 27 (2001) almost certainly cut against his personal feelings on those topics (flag burning and thermal detection of illegal drug growing operations). That being said, it seems to me that he has now become so result oriented so as to abandon all restraint–just compare his stated position in the Hobby Lobby/Conestoga case to his controversial position in Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872 (1990)–though much has obviously happened since 1990.

    1. I probably won’t make any friends with this, but I tend to side with the Susan B. Anthony List, though ONLY with regard to the narrow basis for their appeal. The question is even a bit more nuanced than “can they sue?” Rather it was, “do they have to break the law and be punished before they sue?” I tend to agree that pre-enforcement standing is a good thing when it comes to facial constitutional challenges–if you have good cause to believe a statute is unconstitutional AND that you will run afoul of same, you needn’t expose yourself to liability to bring suit. Also, I think the Ohio statute being challenged is a bad one. Though I think the Susan B. Anthony List’s message was a stupid and horrible one (that a vote for the ACA was a vote for government-funded abortion) I very much dislike the criminal prosecution of even the dumbest political speech. However, as they say on the internet, YMMV.

      1. YMMV? Whazzat?

        I do not know enough about the legalities involved, including the specific Ohio statute in question. As I understand the situation, the Susan B. Anthony List was prevented from putting up billboards making the assertion that a candidate’s vote for the ACA was the equivalent of voting for government-sponsored abortion, which is not only stupid and horrible, but patently false. If that does not fall under libel, could it qualify for violating truth in advertising laws? Does making false accusations on a billboard somehow qualify as simple political speech (e.g., equivalent to something said in a stump speech, interview or debate) and is somehow exempt from other regulations placed on advertising?

        Of course they have the right to sue, but I question their standing in the case, since they are insisting on the right to deceive. I also question whether it is wrong to prosecute political speech that is not dumb (or mistaken) but deliberately misleading and malicious. I am reminded of “push polls”, such as when voters in the 2000 South Carolina primary were asked if they would vote for John McCain if they knew he had an illegitimate Black child. You may disagree, but I think that tactics like that are so far over the line that they should be prosecutable.

    1. Actually he meant to say Sikorsky. It’s the loud sound of Marine One flying overhead that bugs him so much.

    2. Some, if not many, of my favorite composers, I once loathed. Interesting how maturity and perspective and education can change one’s mind. Scalia is much older than I am, and he should have already seen the value of Stravisky…so yeah, off with his head.

      1. And I know just how to remove it!

        I and some other trumpeter will give him an up-close and personal performance of the Fanfare For a New Theatre. How up-close? If each ear has a bell an inch or three away, that should just about do it.

        We will, of course, repeat as necessary. For that matter, the piece is a bit tricky and would take a bit of practice to perfect it, and we’d (of course!) want him to get the full experience….



        1. That is an amazing piece. I cannot wait to see my first Stravinsky opera this summer. Ironically, I have seen Sandra Day O’Conner at the opera too..I bet she likes Stravinsky.

          1. It’s one of my favorites. I worked it up when I was at ASU, but I’ve yet to perform it. I have vague ambitions of using my (too-small) living room for chamber music concerts; if those ambitions are ever realized, the Stravinsky Fanfare will, of course, be the first piece on the first program….


  10. IANAL, but Scalia’s comments seem to not have any relevance whatsoever to the legal issues at play in this case. He and Thomas appear to be having a competition for “worst supreme court justice EVAR”.

    1. Can I ask why you think so? Posner has been consistent on this question, but I think it is ill-suited to his statistical mind. Essentially, as I interpret Posner’s position, it is that because there is a dearth of hard evidence on damage associated with such violations (he notes, somewhat strangely to my mind, that there is no evidence of anyone being converted), public school students should simply “grin and bear it.” He has said as much about prayers associated with sports and the like. While in a hyper-formalistic and strictly originalist sense, Posner may well be right, this strikes me as one in which the esteemed Judge is being quite narrow-minded.

      1. And the answer is always to “turn it around”. Would he be cool with it if a Satan-worshipper were up there extolling Satan and inviting the kids to see the exquisite darkness of Satan and serve Him?

        If not, he’s simply full lying.

      2. Posner does not think there was any constitutional violation to be endured because there was no endorsement of the rented church’s faith and no coercion to participate in any religious observance, only incidental exposure to religious symbols. Did anyone actually feel obliged to participate in any religious observance? Did anyone feel pressured by the state to alter their opinions about religion? He says there’s no evidence of that and I think he makes a reasonable argument. It’s a close case.

  11. So KISS is the way, the truth and the life, none may reach the father except through Led Zeppelin and that should you not profess your faith in the ACDC you will burn in eternal retribution?

  12. Never been into Stravinsky. However I do have a perchance for grindcore and experimental black metal. I kinda get where he’s coming from but it doesn’t speak to me.

    Scalia is still a cock that walks like a man, though, and I’m not even American.

    1. Maybe it is the migraine meds, but your response could totally fit in medias res of an existentialist play. 😉

      1. So, I’ve tried Stravinsky. It’s OK, sort of.

        I’m not desperate for something new. I don’t crave dissonance for its own sake. For me it comes down to: Will I spend my hour (one of the very few I have) listening to Stravinsky or to Bach? It’s a no-brainer to me.

        I’m sure to be branded a cretin; but I don’t like much of what passes as Modern Art ™ either.

        I’m up for trying anything once, and I sort of feel obligated to try all this different music (and art, etc.) and I do (even rap and industrially-manufactured “country” music.) But after that, I don’t feel any need to indulge further unless I’ve really discovered something I like. Which didn’t happen in these cases.

        Of course, none of this has anything to do with Scalia’s inanities.

        1. “I’m sure to be branded a cretin; but I don’t like much of what passes as Modern Art ™ either.”


          Just kidding. I can’t think that any reasonable person would have a problem with that statement (see what I did there?).

          But, I do think there is plenty of wonderful modern art out there to find. The problem is wading through the brobdingnagian mass of crap that is the entirety of modern art in order to find the diamonds. An onerous task that no one could rightly be blamed for not taking the time to do.

          In truth this has always been the case, that the current styles of any era are mostly crap. It takes time to sort them out, and after a few decades or centuries mostly only the diamonds are remembered. Most of the art produced in the Renaissance was crap too. That and the fact that there are so many more artists in the modern era compared to any other previous period compounds the problem.

          But that isn’t all bad. More crap is produced, but also more diamonds.

          1. Fully agree: 90% of everything is crap. And, on the internets, with their near-total lack of QA, 90% of the remaining 10% is crap.

            When Jerry waxes lyrical about the great popular music of the 60s and 70s (and I agree!), if you look at the top selling records of those days, there’s still a lot of (90% anyone?) crap there too.

        2. Did you make it to the finale?

          I’ll usually choose Bach myself.

          I don’t know if I’d say S uses dissonance simply for its own sake. There’s always a justification, even if that justification isn’t contrapuntal. (I do prefer contrapuntal justification, though. I feel music that appeals primarily to extra-musical justifications for what notes go where is, well, less musical.)

          1. I agree.

            Yes, I’ve listened to all of the Rite and Firebird. And they are … OK. Admittedly, I am not an aficionado of classical music. But I do know a like a lot of it. I tend to favor solo pieces (esp. piano/organ, guitar/lute, violin, ‘cello) and small ensemble pieces to full orchestra pieces. Which may help explain my lack of connection with Stravinsky.

            I especially love the Bach solo pieces. I’m currently working on a guitar transcription of the Gmaj prelude (from the ‘cello suite). It’s hard to describe how much this piece moves me.

            1. “It’s hard to describe how much this piece moves me.”

              Right there with ya, JBlilie.

              I don’t want to clog this thread with OT musical ramblings, but I do want to ask if you think that par if what moves you is profound admiration for Bach’s ability to conceive music that is just. so. right. I feel this is what drives much of my reaction to his music. Listening to his music is like beholding intelligence reified.

              I’ve long thought my reaction is probably very similar to what some physicists have said they experience when contemplating the power, elegance, and, in their words, beauty of important equations developed by great minds.

  13. This is why it is so important to elect a liberal minded president in 2016. This is the oldest SCOTUS since FDR’s time. Ginsburg is 80 and Breyer, Scalia & Kennedy are all deep into their seventies. If the next president gets an 8 year term, he/she could appoint up to 4 justices. Just one justice could flip this court around for the next twenty years (yay). Oh, how I miss the Warren Court.

    1. This is an absolutely accurate observation. Give the Right a solid Court majority that will last for twenty years, as well as the opportunity to continue to pack lower Federal Courts with justices perhaps worse than Scalia et. al., particularly if the President and both Houses are also new-GOP (it does not seem accurate any longer to refer to Republicans as the GOP in the traditional 1860 – 1980 sense).

      Any supposed US emergent liberal majority expected to follow upon the demise of the elderly FOX-viewing audience would be hindered tremendously with a regressive SCOTUS; not that I’m all that confident about a future progressive US electorate, either. A Dem Pres ’16 – ’20 (or longer) may be vital for the veto power aspect, also.

  14. I knew that Scalia was conservative but, hey, many conservatives have a strong commitment to the Constitutional guarantees of individual rights.
    But then he handed down his judgement that a War Memorial cross was not unconstitutional because…….
    “Crosses are not religious symbols.”
    This from a Catholic. Then I knew that he would sell out everything the Constitution and the Supreme Court stood for to push his personal religious agenda.

    1. A Catholic insists on seeing a man tortured on a cross, not just a cross. Nothing but the full sado-masochistic display qualifies as true religion for them.

      1. Yup, full tortured corpse or it’s not True Religion™
        Right now I’m reading Aldous Huxley’s Grey Eminence. It’s about religion and politics in seventeenth century France. The central character Father Joseph created whole orders of contemplatives called Calvarians just so that they could shift mystical meditation away from Eastern-like oneness-with-the-universe stuff to focus entirely on obsession with the tortures of Christ.
        A high born nobleman he renounced all worldly things for an extreme ascetic life that ironically included using his influence with the Royals and the Pope to keep the Thirty Years War going so that everyone in Europe could be blessed with knowing the suffering of Christ. He had convinced himself that if only the Huguenots could be made to feel god’s special gift then they would convert back to the true faith.
        Didn’t work and I can’t think why not and I doubt Scalia can either.

  15. Hey! That’s my school district. Hey, my 18 year old son graduated from there yesterday!!! I can only say I am ecstatic that he was able to receive his diploma in a setting that treated all citizens equally and involved no excessive entanglement of the state with religion.

  16. I clicked “Like” after reading the email to its end. When it brought me to the webpage, and I saw the cartoon, I wanted to click “Like” again! Excellent!

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