First Amendment

  • June 3, 2014

    The Supreme Court ruled that a Pennsylvania woman who attempted to poison her husband’s mistress cannot be prosecuted under federal law. The justices ruled that the federal ban on chemical weapons does not apply to Carol Anne Bond, whose attempt to poison her victim resulted only in “a minor thumb burn readily treated by rinsing with water.” Lyle Denniston as SCOTUSblog breaks down Bond v. United States.
    New voting laws across the country will pose an arduous task for minority voters in the midterm elections. In states like North Carolina and Texas, these restrictions will “disproportionately affect registration and voting by African-Americans as compared with whites.” Fanita Tolson discusses the issue in the Tallahassee Democrat.
    Trip Gabriel at The New York Times addresses why democrats in Kentucky are disillusioned by the Obama administrations’ ambitious proposal for regulating power plant emissions.
    At Just Security, Marty Lederman examines the Obama administration’s reasons for not waiting “30 days to complete the Bergdahl exchange.” 
    At Concurring Opinions, Ronald K.L. Collins provides a “snapshot of the Roberts Court’s record on free expression issues.” 
  • May 8, 2014
    Guest Post

    by James C. Nelson, Justice, Montana Supreme Court (Retired)

    I am a non-believer. I became one late in my adult life because I was disgusted with the hypocrisy of religion in general and with the Catholic Church in particular. My decision was grounded in more hours of study and contemplation than I care to estimate. I do not believe in, much less pray to, any god.

    And my point with that opening is that the religion clauses of the First Amendment to the United States Constitution protect my fundamental right to be a non-believer; they insure, among other things, that my various federal, state, county and local governments cannot require me – directly or indirectly – to participate in any religious exercise. Read together these religion clauses form the wall of separation between church and state that the framers intended. They keep – or at least they are supposed to keep – religion out of government and government out of religion.

    That is why I cannot not accept the U.S. Supreme Court’s May 5, decision in Town of Greece v. Galloway. In that case the Court held that the town opening its  official board meetings with a Christian prayer offered by members of the clergy does not violate the First Amendment and does not discriminate against minority faiths or coerce participation with non-adherents. 

    The Court’s decision is flat wrong. It respects neither the history underpinning the adoption of the religion clauses, the wall of separation, nor the reality that “We the People” are a pluralistic and diverse society encompassing all degrees of sectarian believers, agnostics and athiests. Nonetheless, that decision is now the law of the land—created from whole cloth and judicially blessed by the right wing Christian majority of our Nation’s highest Court. And, that puts me in a box.

    For many years I have stood during opening prayers in public meetings of federal, state and local government. I did so out of a sense of respect for the beliefs of others and for decorum – notwithstanding my personal dis-belief in the prayer and the god prayed-to. But, while respect can be freely given, it cannot be compelled.  And, thus, The Town of Greece leaves me but one option.

    I will stand no longer for prayer! I will not, as the Supreme Court suggests, leave the room during the invocation. Rather, I will sit during the prayer in the meeting room in which I am constitutionally entitled to assemble. I will not be bullied nor will I be shamed into standing. After all, it is not I who is violating the constitutional separation of church and state. I cannot and will not be compelled to participate in any fashion in government sponsored prayer.

  • May 7, 2014
    Guest Post
    by William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
    There are myriad critiques that one might level at the Town of Greece v. Galloway decision—its lack of concern for messages of exclusion and the protection of minority religious rights being at the top of the list. But lack of predictability is not one of them.
    My guess is that not many people were ultimately surprised by the decision. Most everybody expected that the Court was not going to use the case to significantly alter existing Establishment Clause doctrine. Most everybody predicted that the Court’s decision would likely be 5-4 and that Justice Kennedy would cast the deciding vote. And most everybody agreed that because the decision would rest with Justice Kennedy, the Court’s opinion would be indecipherable no matter which way he sided. The oracles were three for three.
    Let’s begin with prediction one. That the Court might overturn Marsh v. Chambers, the 1983 decision upholding legislative prayer was never really much of a possibility. The plaintiffs themselves argued only that the Town of Greece’s prayer practice should be modified to be less sectarian and more inclusionary and even Justice Kagan’s dissent did not call for invalidating all legislative prayer.
    Nor was it likely from the other side that the Court would overrule precedents limiting government sponsored prayer in more controversial settings such as public classrooms and public school graduation ceremonies. Justice Kennedy, after all, was the author of Lee v. Weisman, the decision that specifically invalidated convocation prayer.
  • May 6, 2014

    Yesterday, the Supreme Court ruled 5-4 in Town of Greece v. Galloway that the First Amendment was not violated when monthly board meetings in Greece, New York were opened with a Christian prayer. In dissent, Justice Elena Kagan wrote that the ruling would “strike a heavy blow against the nation’s tradition of religious pluralism, and will lead to prayers that will actively promote a single faith’s religious values.” At The Daily BeastGeoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, breaks down the decision. At The Atlantic, Garrett Epps reveals how the court’s decision “shows how far the ground has shifted under the Establishment Clause in the last 30 years” while Dahlia Lithwick at Slate prepares her readers to “get ready for a lot more Jesus in your life.”  
    In the wake of Oklahoma’s botched execution of Clayton D. Lockett, the White House “has commissioned yet another study of lethal injections.” Writing for The Atlantic, Andrew Cohen explains why President Obama “would be better off lobbying the Supreme Court and Congress to make changes.”
    At The New York Times, Adam Liptak reports on a new study which reveals that Justice Antonin Scalia “voted to uphold the free speech rights of conservative speakers at more than triple the rate of liberal ones” while David S. Joachim reports on the “pivotal” Republican primaries in North Carolina, Georgia, and Kentucky and what they could mean for the 2014 midterm elections.
    At Womenstake, Michelle Banker comments on a Guttmacher Institute study which shows that “more bills to protect access to abortion have been introduced thus far in 2014 than had been introduced in any year for the past 25 years.” 
  • May 5, 2014
    Guest Post
    * Americans United represented the plaintiffs in Town of Greece, with Legal Director Ayesha N. Khan serving as lead counsel.
    This morning, by a 5-4 vote in Town of Greece v. Galloway, the Supreme Court upheld a town council’s practice of opening its meetings with predominantly Christian prayers.
    It did not matter to the Court’s majority that approximately two-thirds of the opening prayers had expressly Christian references, such as “Jesus,” “Christ” and “Your Son.”
    Nor did it matter to the majority that the ministers who gave the prayers typically directed them toward the citizens attending the prayers, often asking them to participate.
    Nor did it make a difference that the prayers took place in a small council chamber, often attended by less than a dozen town residents who would have to plead requests for permits and variances to council members who could easily see whether the residents took part in the prayers.
    The principal ground for this ruling was the majority’s conclusion that such prayer practices were common in 1789, when Congress approved the First Amendment.
    The majority paid no heed to how drastically American society has changed in the two-and-a-quarter centuries that have passed since then. We are no longer a nation where nearly everyone professes to be a Christian. More and more of us identify as atheists and agnostics, Jews and Muslims, Buddhists and Wiccans, or members of a litany of other faiths.