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In 1992, the North American Schmiedeleut Hutterian Church, a religion endorsing an agrarian, communal life based on the Bible’s New Testament, split into two competing factions. Out of 173 Hutterian colonies located mostly in the United States, 95 colonies disclaimed the leadership of their once-reining Senior Elder, Reverend Kleinsasser, because of allegations that Kleinsasser misused church funds. See Here. As a replacement, disgruntled colonies endorsed a new candidate, Reverend Wipf, as the new Senior Elder of the Hutterian Church.

Although the leadership transition went smoothly in the preponderance of Hutterian colonies throughout the United States, in some colonies, to say the least, it did not. The Hutterville Colony of South Dakota, for example, continues to fight over its corporate governance structure ever since the initial schism in 1992. While some members refuse to repudiate Kleinsasser’s leadership, others believe Wipf is now entitled to the leadership chair in the Hutterville Colony, which is organized as a non-profit corporation under South Dakota law. Because building consensus within the colony after so many years proved futile, however, litigation seemed like the only recourse and ensued in 2010. If the community couldn’t resolve the leadership dilemma, the contending factions at least hoped the secular judiciary would do it for them, once and for all.

Before Hosanna-Tabor had any say, a South Dakota Circuit Court did just that. Instead of asserting that the First Amendment precluded the court from scrutinizing such ecclesiastical matters for fear of entangling itself in religious doctrine and belief, Judge Wold held the only solution was for the Hutterville Colony to dissolve so that its assets could be distributed equally to all the members of the community.

Upon review, however, the South Dakota Supreme Court in Wipf v. Hutterville Hutterian Bretheren, Inc took a step back from Judge Wold’s decision in light Hosanna-Tabor‘s recent teaching: certain ecclesiastical matters such internal leadership decisions should not be adjudicated by secular courts. Because the Hutterville Colony’s corporate governance structure made following the Hutteritan religion a prerequisite of corporate membership and incorporated sectarian doctrine throughout much of its corporate documents, the South Dakota Supreme Court aptly recognized it had no place in adjudicating this religious controversy. In order to resolve the dispute it would not only have to analyze the Hutterian religious doctrine, a totally foreign subject matter, but it would also have to render a legal judgment based on these sectarian teachings. Consequently, the South Dakota Supreme Court held it lacked jurisdiction to order the dissolution of the colony, placing the controversy back in the hands of the Hutterville Colony to determine whether Kleinsasser or Wipf rightly assumed the rod of power.

In one of the first cases to cite Hosanna-Tabor, Wipf vindicates the limited role of secular courts in resolving matters of ecclesiastical import. Therefore, while Hosanna-Tabor surprisingly failed to define who qualifies as a minister for purposes of the ministerial exception, the decision’s clear declaration of the limited role of courts in resolving internal religious controversies will likely make serious waves in state and federal courts alike in the years to come. Contrary to its hopes, then, the Hutterville Colony found no secular enlightenment in the South Dakota Supreme Court in the wake of Hosanna-Tabor. Instead, the religious community must rely on its own internal dispute resolution mechanisms to resolve its decade-long controversy as to who shall reign supreme at Hutterville.

A similar debate is brewing in North Carolina, which instituted forced sterilization programs from the 1930s to the 1970s as part of a eugenics program aimed to reduce poverty and shrink government welfare programs.  Over thirty states had forced sterilization programs, driven by a belief that they would “improve the gene pool.”  Those who were sterilized often did not know the purpose of the surgeries until after the fact. Victims were chosen using IQ tests and social worker recommendations based on factors such as “promiscuity” and “feeble-mindedness,” and reports on mental and physical health.   The state’s Eugenics Board made the final decision on the operation.  Families were often threatened with losing their government benefits if they did not sign the sterilization consent forms.  The program disproportionately affected poor black families – 40% of those sterilized were non-white minorities, and 85% were women and young girls.

Last Friday, the NC Justice for Sterilization Victims Foundation, an organization that North Carolina Governor Bev Purdue created in 2010, issued its Final Report to the governor.  It included a recommendation to provide outreach to victims, mental health support, public education, and $50,000 in compensation to the 1,500 living victims of forced sterilization.  To many, this figure is humiliating and inadequately considers the value of the victim’s life, the loss of potential children, lifelong humiliation and regret, and the cost of medical care as a result of the procedures.  But the report states: “compensation is not meant to value life loss or the choices taken away from nearly 7,600 men and women but to serve as a strong and collective acknowledgement of an abusive government program that should never be duplicated by this state or any other government ever again.”

The Supreme Court upheld the legality of forced sterilization in the famous case of Buck v. Bell, 274 U.S. 200 (1927).  The Supreme Court held that a Virginia sterilization statute did not violate the Fourteenth Amendment and did not deny Buck (who had her fallopian tubes removed) due process and equal protection.  Justice Oliver Wendell Holmes wrote: “Carrie Buck is a feeble-minded white woman … [and] if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc.”  Due process had not been violated because the Eugenics Board provided sufficient procedures in making its decision by offering a hearing, proper notice of the hearing, and the evaluation of appropriate evidence to make a final sterilization recommendation.  Regarding the attack on the substantive law, Justice Holmes wrote that the Court could not say that there were no grounds to justify this law:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes …. Three generations of imbeciles are enough.

In 1942, the Supreme Court’s ruling in Skinner v. Oklahoma, 316 U.S. 535 held that an Oklahoma sterilization statute violated the equal protection clause of the Fourteenth Amendment, but on grounds that still left open the possible legality of other sterilization statutes.  Oklahoma’s statute ordered sterilizations for “habitual criminals” convicted of “felonies involving moral turpitude.”  However, since larceny counted as a felony of “moral turpitude” while embezzlement did not, the Court held that “when the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.”   The line between larceny and embezzlement resulted in different sterilization consequences, and the Court found this line to be arbitrary.

North Carolina is in a unique position as the first state to offer compensation to victims of sterilization programs.  Professor Lombardo, a law professor at Georgia State University, argues that states should pay for these wrongs even when they were legally inflicted, likening these payments to ones paid to prisoners exonerated by DNA evidence.  North Carolina’s legislators should act with urgency to pass a resolution agreeing on financial compensation to victims.  Professor Waterstone, a law professor at Loyola (Los Angeles) notes three reasons why the state’s actions are critical: 1) the state has a moral obligation to recognize its history of wrongdoing, make amends, and create public awareness; 2) North Carolina can bring to light the modern-day ramifications of genetic discrimination, as this is especially pertinent in the healthcare industry today (such as denying insurance coverage to those with predispositions to certain diseases); and 3) Buck v. Bell has been narrowed but not explicitly overturned, and North Carolina’s actions should lead to a re-evaluation of the law.  Courts still uphold classifications based on disability using rational basis review, concluding that these laws are “rationally related” to a “legitimate government interest.”  Very recently, a Massachusetts court suggested that a pregnant woman known as Mary Moe, who suffers from schizophrenia and bipolar disorder, should be sterilized.  (The Massachusetts appellate court did reverse the lower court’s holding.)

Additionally, forced sterilization laws are not exclusive to the United States – transgendered people in Sweden who wish to legally change their gender on official papers must first get divorced and sterilized, as required by a 1972 law.  Sweden’s history of forced sterilization mirrors North Carolina’s – over 60,000 people classified as “mixed race individuals,’ single mothers with many children, deviants, Gypsies, and other vagabonds” were forcibly sterilized between the 1930s and 1970s.  Perhaps North Carolina’s actions can serve as a wake-up call to our courts and the international community that these incongruities still exist today.  The issue the state deals with today is not just about correcting a historical wrong, but equally about confronting modern-day legal challenges.

A few days ago, a student-plaintiff represented by the American Civil Liberties Union, Jessica Ahlquist, experienced such local backlash after prevailing on her successful Establishment Clause challenge. This time, however, community backlash took a new spin. Instead of the standard hate-letter or losing a friend or two, local florists got in the mix in order to express their disdain over Ahlquist’s recent success in court.

On January 11, 2012 the Rhode Island District Court in Ahlquist v. City of Cranston announced that a prayer mural hanging in Ahlquist’s public high school auditorium violated the Establishment Clause. The mural includes the text of a school prayer that was routinely recited by students before the practice was invalidated by the U.S. Supreme Court’s hallmark school prayer decision in Engle v. Vitale (1962). It begins with sectarian phrases such as “Our Heavenly Father” and ends with the hallmark endorsement “Amen.” City officials, however, disclaim and sectarian religious affiliation by noting the mural is a historical artifact from the school’s early days and therefore serves no religious purpose. After all, it was merely a gift from the Class of 1963, graduating coincidentally one year after the Warren Court rang the death-knell for school prayer in Engle.

In finding the mural to violate the Establishment Clause, the court declared per Judge Ronald Lagueux that: “The purposes of the Prayer when drafted, and the Prayer Mural, when installed, were clearly religious in nature…. No amount of debate can make the School Prayer anything other than a prayer, and a Christian one at that.” The court accordingly granted a permanent injunction requiring the school to immediately remove the mural from the auditorium. Notably, Judge Lagueux also exclaimed the brave and courageous stand taken by Ahlquist against the Prayer Mural given the hostile response she faced and will likely continue to experience from the community.

As a token for her courageous action, the Freedom from Religion Foundation, an advocacy for the separation of church and state based in Madison, WI, attempted to send her a bouquet of flowers. Three florists located in Cranston—the city where Ahlquist lives, and one in a neighboring town, however, saw otherwise. Instead of fulfilling their historical role as bearers of good news, each florist rendered a new form of community backlash against Establishment Clause challenges by refusing to deliver thanks to Ahlquist.

According to a press release by the Freedom from Religion Foundation, all four florists refused to send Ahlquist flowers because of her recent success in the Prayer Mural case. See Here. The first shop, Floral Express, deceptively stated it was not available for business even though it answered the phone call. The owner of Floral Express then mentioned: “I am not able to fill this [order].” The second shop took it one step further: “I will not deliver to this person.” The third shop followed suit by unequivocally refusing to deliver only after hearing the flowers were intended for Ahlquist. And, the fourth shop, located outside Cranston, put the proverbial “cherry-on-the-top” by initially agreeing to take the order, but eventually refusing after patrons voraciously threatened to boycott the business if it delivered the flowers. As a result, the FFRF was forced to contact a far-distant shop in Putnam, Connecticut called Glimpse of Gaia, who not only agreed to deliver the bouquet to Ahlquist, but also threw in a second token bouquet with its own message: “Glimpse of Gaia fully supports our First Amendment and will not be bullied by those who do not. Here’s to you, Jessica Ahlquist.”

Many of the florists who denied delivery have ostensibly justified their actions upon non-discriminatory grounds. Local newspapers report that Raymond Santill, the owner of Flowers by Santil, one of the companies the FRFF attempted to order from, rejected the delivery because the person delivering the flowers would need police protection and identification to enter the home. Santil further averred that as the owner of the store he has the right to deliver or not to deliver to whomever he pleases. See Here. Similarly, the owner of Twin Florists, Marina Plowman, echoes Santil in stating: “I just chose not to do it. Nothing personal, it was a choice that I made. It was my right, so I did that. I’m an independent owner and I can choose whoever I want, whenever I want.” Id.

The Freedom from Religion Foundation, however, believes otherwise. And, they may be rights according to Rhode Island law, which offers heightened protection for religious liberties. Stemming back to Rhode Island’s religiously tolerant roots, Rhode Island General Law 11-24-2 makes it unlawful for a place of public accommodation to discriminatorily deny services on account of religion. According to the Freedom from Religion Foundation, then, the florists clearly violated this state law by refusing to deliver to Ahlquist because of atheist beliefs. The Commission for Human Rights in Rhode Island is currently investigating the matter in light of these allegations.

While it remains unclear whether additional litigation will ensue as a result of the florists’ discrimination against Ahlquist, one thing remains certain: student-plaintiffs often face backlash from a myriad of sources within their local communities in response to their Establishment Clause challenges. Thankfully, though, students such as Jessica Ahlquist are courageous enough to stand up for their First Amendment rights in the face of such community hostility. Kudos to you, Jessica Ahlquist.

Chief Justice Roberts, writing for the court, recognized and applied a “ministerial exception” (embraced by many lower courts, but not formally recognized by the Supreme Court until this case): if a church employee is a minister, he or she cannot pursue an employment discrimination claim in court, because such a claim would result in a judge or jury infringing on that religious group’s right under the Free Exercise Clause of the First Amendment to decide which ministers should and should not be retained.  The opinion then addressed the question of what (legally) constitutes a “minister.” On this issue, Roberts greatly limited the judiciary’s role in determining whether or not a church employee is a “minister.”  As Harvard CR-CL Law Review described back in October, the plaintiff in this case had received the formal title of “Minister of Religion, Commissioned” after completing the requirements that entitled her to receive the parochial school’s equivalent of tenure.  The requirements included eight classes of theological study.  Perich then taught predominantly secular subjects, but did also teach one daily religion class and led students in prayer.  The Sixth Circuit applied a primary duties test—a test used by several federal circuits—to conclude that her “primary duties” were secular.  As a result, the Sixth Circuit held that Perich could pursue her employment discrimination claim, because she was not a minister for the purpose of invoking the ministerial exception, under the parameters provided by the primary duties test.

Chief Justice Roberts rejected the “primary duties” test and instead supported a broader exception.  Roberts first stated the conclusion, holding that “it was sufficient to conclude” that the exception covered Perich.  Importantly, the court would not “adopt a rigid formula for deciding when an employee qualifies as a minister.”  Instead, Roberts pointed to several factors that persuaded the court to accept the church’s claim that Perich was a minister: the formal title given to Perich by the church, the religion-based efforts involved in receiving that title (her classwork), Perich’s own use of the title (she had claimed tax breaks given only to ministers), and the important religious functions she performed for the church (teaching its tenets).  Furthermore, the opinion refused to consider whether or not there was merit to Perich’s claim that the church’s religious reason for firing her was pretextual: “that suggestion misses the point of the claim.  The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason.”  Instead, any employment discrimination lawsuit must be dismissed when the church involved successfully demonstrates that the claim against it was brought by or on behalf of a minister of that church.

Arguably, the court has set forth a strong precedent.  This decision unambiguously rejects the “primary duties” test used by several circuits, and appears to close the door on all employment discrimination claims, when the plaintiff is a “minister.”  Still, two concurring opinions in Hosanna-Tabor pointed out that certain elements of the court’s role in determining whether a ministerial exception applies are still up for debate.  Justice Clarence Thomas wrote that the Chief Justice’s opinion did not provide enough deference to religious organizations, stating that “judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the ‘mainstream’ or unpalatable to some.”  Justice Samuel Alito, joined by Justice Elena Kagan, wrote separately to clarify his understanding of the term “minister.”  Justice Alito pointed out that some religions do not even have a structure where any members of the faith perform functions similar to those performed by a “minister.”  Thus, Alito argued “it would be a mistake if the term ‘minister’ or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one.  Instead, courts should focus on the function performed by persons who work for religious bodies.”  Alito’s resulting interpretation of this case: the ministerial exception applied to Perich because she engaged in “important religious functions” for the church.

Attempting to fully delineate the circumstances in which a court could overrule a church’s claim that an employee is a “minister,” in a fashion consistent with the strong First Amendment protection that Chief Justice Roberts articulated in this case, could have resulted in a controversial and messy standard.  The opinion avoids the problems associated with applying the exception as broadly as Thomas argues for, or as specifically as Alito argues for.  Instead, lower courts can continue to carve out areas in which exceptional circumstances may compel the conclusion that the ministerial exception need not apply, although Roberts did his best to limit the scope of such exceptions.  But by refusing to precisely define “ministerial exception,” the Supreme Court will have the benefit of future case law to help it flesh out the ramifications of Wednesday’s holding, if the court decides to revisit the issue in the future.  Thus, Roberts made an effective decision in concluding, “[T]here will be time enough to address the applicability of the [ministerial] exception to other circumstances if and when they arise.”

That being said, this opinion dramatically changes the scope of protection that was provided to religious employees under the “primary duties” test.  It allows churches to discriminate against a considerably larger subset of church employees in their hiring and firing decisions. Religious groups will shoulder a correspondingly greater burden of setting and applying internal policies that are capable of preventing such discrimination, because “ministers” now receive no protection under civil rights or other discrimination statutes.  Justice Sotomayor asked a difficult question at oral arguments: whether a church could be protected against a lawsuit by invoking the ministerial exception, when an employee claims that the church was discriminating by retaliating against that employee for reporting sexual abuse.  Through the holding in Hosanna-Tabor, it appears the court decided that even under the situation described by Justice Sotomayor, when a fired employee is subject to the ministerial exception, First Amendment considerations outweigh the countervailing public policy concerns involved in dealing with the potential unfairness.  The 9-0 holding suggests that the court will not anytime soon be changing its decision to give substantial discretion to religious groups in determining who is subject to the ministerial exception.

The Oklahoma controversy arises out of the “Save our State” referendum (State Question 755), which conservative activists placed on the state’s ballots in the 2010 elections after approval by the legislature. The measure would have amended the Oklahoma Constitution’s provisions on choice of law to prohibit any reference to Islamic law:

“The courts…shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution…and if necessary the laws of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law.”

The amendment passed by an overwhelming margin in November 2010, gaining more than 70% of the vote. Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma, immediately filed suit in federal court seeking an injunction barring the amendment from taking legal effect. The district court of Oklahoma, finding that Awad had standing to challenge the law and that he had demonstrated the likelihood of success in his challenge to the law on the merits, granted the injunction.

The 10th Circuit’s emphatically-worded decision this week is heartening, and not only because it highlights the manifest unconstitutionality of the “Save Our State” amendment. Like the district court’s order before it, it also signaled—albeit in cautious judicial language—the sheer emptiness of the “Sharia threat” spawning the nationwide political movement of which the Oklahoma law is only a leading exemplar.

As detailed in a report by the Center for American Progress, primary responsibility for creating the notion that Sharia law presents an imminent threat to Amerian life rests with a small network of conservative “intellectuals” and financial backers. Funded from traditional right-wing sources like the Richard Mellon Scaife Foundation and the Eagle Forum, a small number of Islamophobic think-tanks have had astonishing success in bringing the Islamic law threat to mainstream attention. A few members of Congress, particularly Allen West of Florida and Peter King of New York, have provided a convenient megaphone for the message, and the movement has to date borne fruit in a number of state legislatures around the country. Perhaps the most effective agitator has been David Yerushalmi, founder of the Society of Americans for National Existence (also, not coincidentally, founder of the “Stop Islamization of America” organization, which the Anti-Defamation League has labeled a hate group). Driven by an apocalyptic notion of worldwide religious struggle, Yerushalmi has declared that “Muslim civilization is at war with Judeo-Christian civilization… the Muslim peoples, those committed to Islam as we know it today, are our enemies.” Yerushalmi produced a model anti-Sharia bill for use in state legislatures; astonishingly, legislatures in more than 10 states have introduced legislation substantially based on his template. To date, Arizona, Oklahoma, Louisiana, and Tennessee have successfully passed anti-Sharia legislation, and nearly half the states have at least introduced similar legislation. (See CAP, Ch. 2, p. 38).

Given that irrational fear and distrust of Islam remains a shameful blind spot for a nation that prides itself on religious pluralism, such a smear campaign is especially dangerous. It has also metastasized in recent months into a potential “issue” in the 2012 elections. Some conservative pundits have long sought to equate the Obama Administration’s supposedly conciliatory stance towards Muslim countries with the threat of surrender to Islamic law at home. Frank Gaffney of the “Center for Security Policy” analyzed the administration’s missile reduction agreements, of all things, as “an increasingly obvious and worrying pattern of official US submission to Islam and …Sharia.” Since last fall, presidential candidates Herman Cain, Michele Bachmann, and Newt Gingrich have sought political advantage through explicitly conflating two long-standing right-wing fears: radical Islam and the federal judiciary. Bachmann has repeatedly called for vigilance against the Sharia threat in US courts, and Gingrich declared in a speech last year that “Sharia is a mortal threat to the survival of freedom in the United States and in the world as we know it.”

Of course, no threat exists. There can be no doubt that, as a religious guide to personal behavior, family relations, and even contract principles, Sharia contains precepts which may clash with American law. However, no American court has ever subordinated its secular authority to Sharia; the notion that state constitutions need protection from encroaching theocracy is an outright, cynical fabrication. In a succinct report called “Nothing to Fear,” the ACLU helps debunk such claims. Of course, Muslim citizens have pointed to Sharia as evidence of the requirements of their faith—for instance, in a prisoner’s suit against a prison for failing to fulfill its constitutional duty to allow him to exercise his religious beliefs (Shaheed Allah v. Adella Jordan-Luster). On other occasions, courts have upheld the results of out-of-court arbitrations conducted in accordance with Islamic law—but have done so by subjecting the results to the same analysis as any other arbitration agreements (Abd Alla v. Mourssi). As the ACLU points out, courts have uniformly rejected defenses to civil or criminal liability based on religious law — as in People v. Benu when a court found a father guilty of child endangerment for facilitating his daughter’s underage marriage despite his invocation of Islamic law as a defense. Merely recognizing that Sharia exists—and that Muslims may rely on it to order their private affairs—is nothing like a surrender to Islam; it is the same routine accommodation of religious beliefs so loudly demanded by conservative groups when the religion in question is not Islam.

Within the context of its Establishment Clause analysis, the 10^th Circuit reached the same conclusion: the threat against which the Oklahoma legislation is directed is a baseless one. First, it affirmed that the plaintiff had standing to challenge the legislation—and in doing so, acknowledged just how damaging the “Save Our State” amendment could be for Muslim Oklahomans. The court agreed with Awad’s claims about its possible effects: “stigmatizing him and others who practice the Muslim faith, inhibiting the practice of Islam, disabling a court from probating his last will and testament (which contains references to Sharia law), limiting the relief Muslims can obtain from Oklahoma state courts, and fostering excessive entanglement between the government and his religion.” Relying on 10^th Circuit precedent like American Atheists v. Davenport holding that the “actual injury” required for standing can be fulfilled by unwelcome contact with government interferences in religious issues, the court found that “As a Muslim and citizen of Oklahoma, Mr. Awad is directly affected by the law…against which [his] complaints are directed.”

Judge Matheson then turned to the crucial question: which Establishment Clause standard provides the appropriate test for evaluating the constitutionality of the “Save Our State” amendment. The older test, which has been repeatedly criticized by members of the Court but still remains the default , is the “Lemon Test” derived from Lemon v. Kurtzman (1971). The court, however, affirmed the district court’s application of the stricter, less-used test derived from Larson v. Valente (1982). The Larson test applies the equivalent of strict scrutiny to laws which directly discriminate against certain religions, whereas the Lemon accords slightly more deferential review to laws which are not clearly discriminatory in intent. In the court’s words, “The Larson test provides that if a law discriminates among religions, it can survive only if it is ‘closely fitted to the furtherance of any compelling interest asserted.’”

The court found that, even on its face, the amendment betrayed a discriminatory intent towards Islam. Although its defenders insisted that it referred to Sharia only as an example of an impermissible “foreign” law, the court found otherwise; Judge Matheson found especially damning the passage which allowed reliance on other states’ law “provided the law of the other state does not include Sharia law.” Though as a practical matter the provision means nothing—no American state includes Sharia as part of its legal code—the discriminatory intent is difficult to hide.

Having determined that the Larson standard applied, the 10^th Circuit went on to test whether the “Save Our State” amendment fulfilled its requirements: whether it was “closely fitted” to a “compelling government interest.” Noting that mere “speculation” or “statements of abstract principles” do not satisfy the government’s burden of showing a compelling interest, the court found the law’s justification in any kind of real threat to be lacking:

“Appellants do not identify any actual problem the challenged amendment seeks to solve.  Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.”

Finding that interests as weighty as those protected by the First Amendment could not possibly be subordinated to such exploitative shadowboxing, the court ruled that the law’s challenger had demonstrated his likelihood of success on the merits and thus upheld the district court’s preliminary injunction .

This ruling does not, of course, put the matter to rest, even with respect to Oklahoma. The Republican state senator who sponsored the amendment pilloried the 10^th Circuit’s decision as an attempt to “silence the voice of 70 percent of Oklahoma voters” on par with other supposed judicial outrages such as “legalized abortion and forced busing of school children.” Appeal will surely follow, and the response of other courts to similar state laws is still unclear. First Amendment challenges, at least on the Larson standard, might be more difficult against laws whose language does not explicitly single out Islam. A law under consideration in Pennsylvania, for instance, bans only reliance on “foreign” laws in more general terms; resolution of such a question may well depend on the willingness of courts to dig into legislative history to discern intent.

At the very least, Judge Matheson’s ruling is a strong statement of the constitutional case against such legislation as the Oklahoma amendment. Couched in the language of Establishment Clause jurisprudence as it is, it makes clear not only that the grounds for the legislation are nonexistent, but also that its effect amounts to unconstitutional discrimination.

In July 2010, Jennifer Keeton, a former ASU student pursuing a masters degree in school counseling, sued the public university on First Amendment free speech and free exercise grounds, after it threatened to expel her unless she agreed to participate in a remediation plan designed to improve her ability to counsel members of the GLBTQ community.  Along with her complaint, she sought a preliminary injunction barring ASU officials from dismissing her from the program.  In August, the federal district court denied her motion for a preliminary injunction in Keeton v. Anderson-Wiley, a decision that was upheld by the Eleventh Circuit Court of Appeals last month.

On a number of occasions during her first year in the Counselor Education Program, Keeton, a self-described devout Christian, expressed her belief that homosexuality is immoral.  She also told classmates and professors that she would have difficulty working with GLBTQ clients, that she would tell GLBTQ clients that “it’s not okay to be gay,” and that if she were unable to change their sexual behavior herself, she would refer them to someone who practiced conversion therapy.  Before Keeton’s second year was set to begin, in which she was scheduled to engage in one-on-one counseling with middle and high school students, ASU officials determined that her comments indicated an intent to violate four separate provisions of the American Counseling Association’s Code of Ethics, which counseling education programs are required to teach in order to maintain their accreditation.  ASU gave her a choice: participate in a remediation plan, or be dismissed from the program.

Keeton’s remediation plan would have required her to, among other things, attend three diversity training sessions focused toward working with GLBTQ clients, read ten peer-reviewed articles pertaining to effective counseling of GLBTQ clients, increase her interaction with the GLBTQ population by, for example, attending Augusta’s Gay Pride Parade, and write monthly reflection papers summarizing what she had learned.  An addendum to the remediation plan emphasized that Keeton was not being asked to change her beliefs, but rather to separate her beliefs from her counseling.  Keeton refused to participate in the remediation plan, opting instead to file a lawsuit against the university in the U.S. District Court for the Southern District of Georgia.  After the district court denied her motion for a preliminary injunction, she was expelled from ASU.

On appeal to the Eleventh Circuit, Keaton’s lawyers predominantly raised two arguments for why her expulsion was unconstitutional, both unsuccessfully.  First, Keeton claimed that the requirement that she participate in a remediation plan violated her right to free exercise of religion.  In Cantwell v. Connecticut, the court divided the free exercise clause into the freedom to believe and the freedom to act, and held that “the first is absolute but, in the nature of things, the second cannot be.”  The court established the current test for determining whether restrictions on actions violate the Free Exercise Clause in Employment Division v. Smith.  So long as the law that creates the interference has a religiously-neutral intent and is generally applicable, it need only be rationally related to a legitimate government interest to be upheld.  In Keeton, the appellate court determined that ASU had a neutral and general practice of crafting remediation plans when students failed to comply with the Code of Ethics.  Since ASU’s policy was rationally related to its interest in maintaining its accreditation—a requirement of ASU’s accreditation is that it “address the inability of some students to achieve counseling competencies that might impede performance”—the court rejected Keeton’s Free Exercise claim.

Second, Keeton argued that the remediation plan placed unconstitutional restrictions on her freedom of speech.  While Keeton’s statements are offensive to many, myself included, they are nevertheless legally protected.  In R.A.V. v. City of St. Paul, in which the Supreme Court declared unconstitutional a law that made it illegal to burn a cross, the Court stated that “the First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed.”  Unless the speech contains obscenities, defamatory statements, or “fighting words,” it is generally protected.  Though Keeton’s speech is legally protected, her right to speak is not absolute.  Because school classrooms constitute nonpublic forums, program officials may impose restrictions on speech, so long as they are viewpoint neutral and reasonable.  I believe that the Eleventh Circuit erred in determining that both criteria had been met.

The Eleventh Circuit determined that ASU’s decision to impose a remediation plan was viewpoint neutral, because it stemmed from Keeton’s expressed intent to violate the Code of Ethics, not from her religiously-based views on homosexuality.  I am unable to see how this makes ASU’s decision more neutral with respect to the views expressed in the speech.  Under ASU’s policy, students who express viewpoints inconsistent with the Code of Ethics will be made to undergo remediation, while students whose views are consistent with the Code of Ethics will not.

The Eleventh Circuit also found ASU’s policy to be reasonable, using the framework established in Hazelwood School District v. Kuhlmeier.  In Hazelwood, the court held that schools could regulate the content of students’ speech in “school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”  Applying this test to Keeton, the appellate court found that ASU had a legitimate pedagogical concern in teaching its students to comply with the Code of Ethics.  What troubles me about this is not the outcome the court reached, but the omission of a crucial step.  The court determined that it was reasonable for schools to teach students to comply with the Code of Ethics, but it never asked whether the content contained within the Code of Ethics was reasonable.  Suppose that in the 19^th Century the Code of Ethics declared that women were psychologically inferior to men, or that in the 1950s it stated that African Americans were inferior to their Caucasian counterparts.  Would it still be reasonable for schools to teach compliance with the Code of Ethics?  As Judge Pryor noted in his concurring opinion, it was not long ago that the American Psychiatric Association maintained that homosexuality was a treatable mental disorder.  Would the court have come out the same way if Keeton had been forced to undergo remediation for clamoring that the then prevailing view was wrong?  Though a quick review of the modern day Code of Ethics reveals nothing unreasonable, this step is a crucial one, and one that the court failed to take.

Few can fault the judges in this case from wanting to protect school children from being indoctrinated by Keeton’s beliefs.  But as is often said, hard cases make bad law.  My argument is not that Keeton should be allowed to instill her beliefs in school children.  It is merely that forcing Keeton to choose between undergoing remediation and facing expulsion is not a legally permissible solution to the very real problem that ASU faced.  Instead, ASU might have been within its right to postpone Keeton’s scheduled counseling until further notice.  And if Keeton proved unable or unwilling to abide by the Code of Ethics, the American Counseling Association could have refused to certify her as a counselor.

Importantly, while the Eleventh Circuit rejected each of Keeton’s arguments, the decision was not a rejection of the merits of the claims themselves.  A court may only grant a preliminary injunction if the plaintiff demonstrates that she is substantially likely to win her case.  The district court and the appellate court decisions, which were rulings on Keeton’s request for a preliminary injunction, held that Keeton failed to meet this high burden.  While the opinions cast doubt on Keeton’s chances of winning her underlying suit, in the words of Yankee legend Yogi Berra, “it ain’t over till it’s over.”  When the case concludes, it will serve as an important precedent for the many professional associations that promulgate ethical codes.

Background

§5 establishes that some states and localities must submit any proposed change in election practices or procedures for federal approval. That approval can be sought from the D.C. District Court, or from the Department of Justice.  §5 applies to every jurisdiction within each of nine states, and to some jurisdictions within seven additional states. Jurisdictions were initially chosen based on a formula—enacted in §4—that was calibrated to identify areas where discrimination burdened the voting rights of minorities. In 1982 Congress recognized that a successful Voting Rights Act would diminish or dissolve that burden; To account for the act’s potential success, Congress crafted a provision allowing jurisdictions to “bail out” of coverage after satisfying six criteria enumerated in §4(a). The criteria include basic proxies for discrimination; for example, a jurisdiction may not bailout if a US court has “determined that denials or abridgments of the right to vote on account of race or color have occurred anywhere in the territory” within the previous ten years.

Though the bailout provision can prevent §5 from unduly burdening jurisdictions that have addressed prejudice, litigants have continually subjected the provision to legal attack.  Recently, the Court has appeared more willing to entertain such challenges. Dissenting in Namudno, Justice Thomas asserted that “the lack of current evidence of discrimination with respect to voting renders §5 unconstitutional.” Other Justices may have joined him, but for the availability of a convoluted constitutional avoidance rationale.

The Texas Redistricting Litigation

No facial challenge to §5 was brought in the Texas Redistricting cases. Those cases are predicated on claims that the Texas legislature violated the 14^th Amendment and §2 of the Voting Rights Act when it enacted new maps for: 1) its State House; 2) its State Senate; and 2) the US House of Representatives. 14^th Amendment and §2 claims, which needn’t be brought to D.C. or to DOJ, are distinct from §5 claims. A clear and thorough account of the similarities and differences is available here. Though the substance of the plaintiffs claims are interesting, the procedural history of the claims generated the controversy before the Court on Monday.

After a number of parties challenged the Texas State Legislature’s maps, claims were consolidated before a three-judge panel in the Western District of Texas. Relying on the Supreme Court’s decision in Conner v. Waller, a majority of that panel forestalled argument on the 14^th Amendment and §2 claims until preclearance is resolved. Texas elected to file for preclearance in D.C. District Court, rather than pursuing the DOJ’s expedited administrative approach. That litigation is ongoing, with argument to begin January 16^th.

Ordinarily, these circumstances would not prove problematic. Texas, however, had primaries scheduled for March 6^th. Those primaries have since been moved to April 3^rd but to no effect: the three-judge panel, with Judge Smith dissenting, adopted interim maps. In a supplemental opinion, the court reasoned that that no map could be implemented before preclearance, and that preexisting maps were inadequate because Texas had added population and so been apportioned additional congressional seats.

Texas has appealed use of the interim maps. In doing so, it has injected §5 into the litigation. Responding to the plaintiff’s claim that no map can be implemented before preclearance, the state’s reply brief asserts that is has never argued to the contrary. The state continues, maintaining that its contention is a narrow one: that the interim maps are deficient. Reasoning further, the state contends that it has a statutory right to litigate preclearance and is being unduly punished for deciding to forego the DOJ’s administrative process. If the delay effected by seeking preclearance in court bars Texas from implementing the map constructed by its elected legislators, then §5 is even more burdensome than the Court intimated in Namudno. This said, Texas does not explicitly assert that §5 is unconstitutional. Rather it concludes by deviating from its earlier position that new maps cannot be implemented absent preclearance. The state requests that the Court order the interim maps dispatched in favor of those drawn by the legislature. The argument, then, ostensibly rests on state sovereignty.

Uncertainty

 Whether the Court will seize the occasion to speak on §5’s constitutionality is unclear. The Justices may use the litigation to clarify the role of district courts in generating remedial maps. But the Justices could grant Texas the relief it has requested. Enabling Texas to use maps before preclearance would send a strong message: even where core discrimination may exist, §5 imposes an unconstitutional burden. The real possibility that the Texas State Legislature intentionally suppressed the voting rights of minorities may give the Justices pause. Dramatic growth in the Hispanic community, and other minority communities, accounts for the additional Congressional seats that Texas received during reapportionment. But only one of the legislature’s four new districts will provide minority voters with an opportunity to elect candidates of their choice. As a result, this case may not be an ideal vehicle for attacking the Voting Rights Act. Still, many who believe that discrimination continues to encumber minority voting rights have started swimming, lest they sink in a world without §5.

Additional coverage is widely available, as at Scotusblog and the Brennan Center. Election law may come before the Court again in the Spring, if the Justices elect to review the Montana State Supreme Court’s decision to uphold a ban on corporate spending despite Citizens United.

Three days later, the Crimson ran an editorial reprimanding the protesters’ behavior on two grounds, the first of which was that the Occupiers’ choice of target reflected an underlying naivety:

Occupy Harvard’s targeting of a Goldman Sachs recruiting event presents a facile and trivializing interpretation of the root causes of the economic catastrophe and debases our national conversation on the issue. . . .  Obviously, Goldman Sachs is not without blame in the financial crisis. . . .  However, to single out Goldman Sachs as a single target of opprobrium for causing the financial crisis is myopic and unoriginal . . . .

If anything is unoriginal, it is the Crimson’s fatherly rebuke.  Indeed, there’s something more than just a little familiar about the way the editorial scolds the protesters’ alleged simplemindedness.  The logic underlying the Crimson’s argument is one we’ve seen countless times, and one we’ll continue to see in the months ahead: (1) The economic crisis is the result of a confluence of various factors.  (2) Many if not most of the Occupy protesters don’t seem to understand all of the aforesaid factors, for they tend to direct their indignation only at big-name targets like Goldman Sachs.  (3) Therefore, many if not most of the Occupy protesters are uninformed.  Q.E.D.

The logic sketched above constitutes something of a cheap shot, for it is itself guilty of presenting a “facile and trivializing interpretation” of the dynamics at work in a protest like Occupy Harvard.  Any protest of a sufficiently large scale will organize itself around easily recognizable symbols, symbols that, by definition, will have the effect of simplifying and personifying debates about economic or social policy.  To berate a protest movement for demonstrating against highly visible and emblematic targets—or for having the effect of removing subtlety from the discourse—is not unlike scolding a fish for living in water.  Faced with the elementary question of how best to allocate scarce resources, nearly any protest movement that aims to attract attention will opt to target institutions that the public has come to associate, psychologically speaking, with the phenomena to which the movement is opposed.

To protest a Goldman recruiting event is not to suggest that the firm is somehow “the evil enemy of the 99 percent,” the conception of Goldman Sachs that the Crimson incorrectly ascribes to Occupy Harvard.  It is highly unlikely that the protesters were aiming to “single out” Goldman; nor, for that matter, did their strategic decision to target the firm necessarily express any sort of unwillingness to think carefully about the many determinants of our present (socio)economic state of affairs.  There are principled ways to criticize both the form and substance of Occupy Harvard.  But it is irresponsible to attack the protesters on the ground that they made the tactical choice to picket a firm that happens to have assumed a symbolic resonance in the popular imagination.

The Crimson offered a second and equally underhanded criticism of the Goldman protest:

More unsavory, the protest carried with it a strong sentiment against Harvard undergraduates seeking careers in the financial services industry.  Perhaps it is not ideal that so many of us go on to Wall Street, but targeting individuals looking at career options in this way is hardly the appropriate remedy.  Many students who enter these fields are not the scions of banking families but rather hard-working students looking for a challenging job that lets them experience a newfound financial prosperity.  To exhort students to consider their contribution to society when choosing a career is one thing but to target those who want to work for Goldman Sachs misses the point; whatever negative impact the company has on our economy is due to structural issues rather than questions of individual morality.

Note the cautious, euphemistic wording (“newfound financial prosperity”?).  Note also the second half of the last sentence, which makes the bizarre claim that “individual morality” has nothing to do with the “negative impact” of certain American corporations.  More to the point, however, the Crimson attributes to the Occupiers “a strong sentiment” against Harvard students who hope to work in finance.  It is by no means clear that the Goldman protest “carried with it” any such sentiment.  That the protesters meant to convey a general criticism of Goldman Sachs is a fact; that their criticism extended to students looking to work for the firm is a presumptuous inference.  From the fact that the Occupiers marched on a Goldman recruiting event, it does not follow that they sought to pass judgment on Harvard students who aspire to join the firm.  Again, there may be good reasons to take issue with the Goldman protest, but they’re certainly not the ones the Crimson has provided.

Now suppose, for the sake of argument, that the Occupiers did intend to sway students who aim to work in fields like finance and law.  Why, exactly, does the Crimson think that it would be “unsavory” to do so?  To put the question another way, what is wrong with one student challenging the career choices of another?  The Crimson does not provide an answer.  The paper notes, vaguely, that it’s somehow not “appropriate” to critique students’ career choices, but it doesn’t explain why doing so is supposed to be wrong.  Ultimately, the Crimson contents itself with the vacuous conclusion that challenging fellow students’ career choices “misses the point.”  But what is that supposed to mean?  And isn’t the Crimson forgetting the obvious fact that there’s something to be gained from pressuring students to account for the decisions they make in the job market?

It’s noteworthy that, instead of confronting the claims that Occupy Harvard has been putting forward, the Crimson felt the need to come to the preemptive defense of students who opt for corporate careers.  The Crimson’s position seems to be that, as a general matter, it is wrong for Harvard students to take issue with the career choices of their peers.  Such a position is simply irresponsible.

At that same debate, Gingrich took the stage as the narrator dubbed him the “Big Thinker.” It is a label he has gleefully embraced all election season long, and it has been picked up—often without any sense of irony—by myriad news outlets. When Gingrich engaged in his “Lincoln-Douglas style” debate with Herman Cain in October, for instance, the write-ups jumped on the contrast between Cain the political neophyte and Newt Gingrich the Ideas Man. The Atlantic called Gingrich the “wonk-in-chief”; the Washington Post noted that he had displayed his “professorial bent” and speculated that a Gingrich White House could be a veritable “Ideas Factory.” The problem with the Big Thinker label, however, is that it gives Gingrich credit for his supposed intellectual heft while hardly ever subjecting the contents of his ideas to the kind of scrutiny they deserve. It allows a candidate as fundamentally conservative as his less intellectually pretentious rivals to hide his radicalism behind a veneer of respectability. Now that Gingrich’s meteoric rise in the Republican polls has made him a plausible candidate, it is more important than ever to take him, and his ideas, seriously.

One of the most consistent themes of Gingrich’s rhetoric has been his condemnation of the “liberal secularist” agenda and its perversion of the proper role of religion in American public life as envisioned by the religion clauses of the First Amendment. Of course, conservative crusades against liberals and the judicial system as being anti-religious are nothing new. Gingrich’s stance is particularly insidious, however, because it purports to be a historically-rooted Constitutional theory—and because Gingrich, more than any other serious Republican candidate in recent memory, is so widely credited with “intellectual” credentials.

Gingrich laid out his First Amendment theory quite extensively in the most recent of his seemingly endless stream of policy books, 2010’s To Save America: Stopping Obama’s Secular Socialist Machine. In it, he sketches a picture of American moral decline driven by a deep-set liberal conspiracy to pervert national values: “Rejecting American traditions of hard work, self-sufficiency, and honesty, [liberals] encourage Americans to learn how to game the system through the intervention of an activist government–sucking the maximum resources possible out of taxpayers while contributing the minimum.” Central to his narrative is the conviction that the liberal campaign to “drive God from the public square” is not only a sign of cultural downfall, but a perversion of the Founding Fathers’ vision as embodied in the Constitution.

The Founders, asserts Gingrich, were anxious to ensure that religion had a central place in American public life. Reasoning from their many statements extolling the importance of religion in instilling virtue in a society, and from the acknowledgments of the Creator in the Declaration of Independence, Gingrich extols the Free Exercise Clause as an express counterweight to the Establishment Clause—and as the embodiment of the Founders’ belief that “the maintenance of liberty requires virtue.” The separation of church and state, then—the origins of which he pillories as being derived from a misinterpretation of Jefferson’s famous letter to the Danbury Baptists—is a false ideal. The founding generation envisioned government patronage of a public role for religion, limited by the Establishment Clause only to the extent that public observance could be neither coercive nor discriminatory among denominations.

In Gingrich’s narrative of modern American history, this tradition of accommodation of religion has been subverted by a conspiracy whose express aim is to banish religion to the very margins of national life, driving “God and morality to one hour a week in Church, Synagogue, Mosque, or Temple, but to preserve the other 167 hours a week for secularism.” He lays the blame for this conspiracy at the feet of many forces, including Hollywood and Big Labor—and, inevitably, “Barack Obama and Nancy Pelosi”—but ultimately declares that the prime mover in the war on religion has been the judiciary, with its abuse of the proper historical understanding of the Establishment Clause. He dates the beginning of this jurisprudential assault on values back to the early 1960s—specifically the Supreme Court’s decisions in Engel v. Vitale (1962) and Abingdon School District v. Schempp (1963) striking down school-sponsored prayer in public schools. Gingrich attributes a stunning variety of national moral problems to the legacy of the school-prayer decisions: from “drug addiction,” “teenage pregnancy,” and “assaults on teachers” to even more general ills such as “violence” and “disrespectful attitudes.” As he detailed in To Save America and has continued to emphasize in many speeches, Gingrich believes that school prayer is just the beginning: judges have used the Establishment Clause as a club with which to beat back the public religious observances of teachers, students, government officials, private organizations, and ordinary citizens. As particularly egregious examples of this backsliding, he lists three recent cases: the Boy Scouts being prevented from using federal land for a campout “because of their religious views,” the ACLU suing to remove a World War I memorial cross from public land in the Mojave Desert, and the 9^th Circuit decision questioning the use of “Under God” in the Pledge of Allegiance. All this derives, he insists, from a fundamentally flawed liberal understanding of the First Amendment—a “bed of lies that has obscured our understanding of the ‘separation of church and state and ‘religious freedom.’”

Gingrich has made the assault on “secular socialism” a centerpiece of his 21^st-Century political identity, and he has linked it to a broader body of rhetoric assailing activist, unelected judges as threats to the integrity of American democracy. The argument finds resonance, it seems, with the evangelical base of the Republican Party, for whom belief that the nation’s Christian majority is suffering cultural persecution (with the “War on Christmas” being only the most prominent example) has long since become an article of faith. When subjected to any serious scrutiny, however, the folly of the argument is glaringly apparent. It proceeds from deeply questionable assumptions about the original intent of the religion clauses, and more importantly it displays an almost fantastic misrepresentation of how the Court’s recent Establishment Clause jurisprudence engages with that tradition.

To support his preferred interpretation of the original meaning of the Establishment Clause, Gingrich cherry-picks quotations from the founders indicating their belief that religious belief is good for society as a whole. George Washington: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensible supports”; Thomas Jefferson: “The interests of society require the observation of those moral precepts…in which all religions agree.” Establishing that Washington, Jefferson, and Adams—like nearly all American public figures, deists included—believed that religion had social value hardly proves that the Establishment Clause intended no separation of church and state. Even assuming the validity of that premise, though, Gingrich himself concedes that the Clause must have some restrictive power. He points out that even Jefferson and Madison were content to attend ceremonial religious services at the US Capitol, and he extrapolates from that a view that even the most progressive framers of the Constitution had no objections to government acknowledgment of religion that was non-coercive and endorsed no one sect over another.

The only kernel of truth in Gingrich’s indictment of the current Court’s rampant “liberalism” on Establishment Clause questions is that the preferred interpretations of its most conservative members have never achieved majority status. Justice Thomas’s view that the Clause doesn’t even apply to state governments remains a relatively lonely one. The strongest mainstream conservative view, summarized by Justice Scalia’s dissent in McCreary County v. ACLU of Kentucky as the proposition that the Constitution “does not mandate governmental neutrality between religion and irreligion,” has likewise never commanded five votes on the modern court.

Nonetheless, the early 21^st Century Supreme Court is hardly waging a concerted assault on religious values. In fact, and as it has on so many other fronts, it has beaten a distinct—if haphazard—retreat from the vigorous separationism of the mid-century Court. On the issue of government subsidies to religious schools, the Court has issued several recent decisions, including 2002’s Zelman v. Simmons-Harris, which seem to depart from earlier orthodoxy holding that “no tax, large or small,” could contribute to religious education. Although it has occasionally literally “chased religion from the public square” by striking down public nativity displays at Christmas, it has also displayed solicitude for less sectarian displays of religious sentiment, or for commemorations of the “historical” value of religious texts like the Ten Commandments (Van Orden v. Perry, 2005). In recognizing the legitimacy of invocations of what it has called our “civic religion” or “ceremonial deism” on public occasions, the Court has nonetheless required, at a minimum, that the setting be free of coercion. Although the majority’s decisions in such cases as Lee v. Weisman (1992) and Santa Fe Independent School District v. Doe (2000) that school settings involve a higher risk of coercion has not set well with conservative members who prefer a more literalist definition of “coercion,” the general principle is a familiar one—the Court has no more intention of banishing God from our national discourse than did Jefferson or Madison. It is also a principle Gingrich should recognize; it is not too far from the non-coercion, non-endorsement accomodationist norm he so lauded in the practices of the Founders. Indeed, the Supreme Court may be vulnerable to criticism for watering down the Establishment Clause, or for a Free Exercise jurisprudence which has been unduly burdensome on minority sects. It may even be that the Court’s doctrine on the whole subject is hopelessly muddled and confused, as Justice Thomas recently alleged. A “secular socialist” conspiracy, however, there is not.

It is almost certainly a mistake to analyze Gingrich’s claims in good faith. At bottom, he represents only one of the most articulate figureheads of a movement which in the last generation has reaped tremendous victories from an increasingly conservative Supreme Court even while it continues to score political points engaging in a crusade against a phantom “activist judiciary.” On the subject of the First Amendment Gingrich trafficks in exaggerations and outright fabrications entirely unworthy of his Establishment respectability and his Big Thinker moniker. His conjuring of a fictitious conspiracy against First Amendment religious values as a predicate for a wide-ranging attack on the very independence of the American judiciary is particularly dangerous, and particularly worthy of exposure.