Month: July 2022

7/3/1941: Chief Justice Harlan Fiske Stone takes oath.

The post Today in Supreme Court History: July 3, 1941 appeared first on Reason.com.

from Latest https://ift.tt/Hfmdbjv
via IFTTT

Someone gave Margaret Atwood a flamethrower.

The gray-haired author has become a patron saint for a certain kind of dystopian apocalypticism. No protest is complete these days without at least a few women in the red robes and white bonnets of The Handmaid’s Tale, her clouded portrait of an authoritarian society built around controlling conscience and fertility. “The Handmaid’s Tale has been banned many times—sometimes by whole countries, such as Portugal and Spain in the days of Salazar and the Francoists,” Atwood notes, “sometimes by school boards, sometimes by libraries.”

All of which made her the perfect subject for a stunt to raise money for PEN America, a nonprofit that fights literary censorship: She took a blowtorch to a custom-made fireproof edition of her most famous work, which would later be put up for auction by Sotheby’s.

Book burnings have long been popular with those who would seize and hold power, from the Catholic Church to Josef Stalin. Kings, fascists, and communists alike have warmed their hands over literary bonfires. But rarely in 2022 America do book bans take the incendiary form of our Ray Bradbury–fueled fever dreams.

Yet controversy over book bans has flared up nonetheless, with local and state elections won or lost over which books will be stocked in libraries or taught in schools—a newly invigorated front in a long-running culture war.

The American Library Association (ALA), another anti-censorship organization, keeps lists of what it calls “challenged books”—books that a person or group has tried to remove from or restrict access to in schools or libraries. A “banned book” is one where that removal is successful.

By the ALA’s reckoning, challenges and bans are way up, setting a 20-year record. The organization recorded 729 challenges to library, school, and university materials in 2021, targeting more than 1,500 different titles. The list is far from exhaustive, assembled as it is from media reports and from folks who contact the organization directly. This produces an odd chicken-and-egg problem, where the more politically agitated people are about book bannings, the more incidents they will report as book bannings, and the more there will appear to be.

The books that make the ALA annual top 10 list vary from year to year, but they comprise a consistent mix: classics that deal with mature themes—Beloved and the Bible—books that contain slurs or other now-contentious words or depictions of race—Adventures of Huckleberry Finn and To Kill a Mockingbird—books that touch on sex or gender from what is intended to be an age-appropriate perspective—I Am Jazz and anything by Raina Telgemeier—books that smack of the occult—the Harry Potter series and Bridge to Terabithia—and books that are very clearly by and for adults—Fifty Shades of Grey.

The ALA list suggests book banners lean right—with an increasing emphasis on books with queer themes or characters, for example—though book challenges come from across the spectrum of political opinion and aesthetic preference. It’s debatable whether the list’s bias is an artifact of the collectors’ concerns or simply a reflection of an underlying reality.

“Banned books” is a vague category, like “cancel culture” or “obscenity.” At the terrifying top of the hierarchy are true book bans, enforced by the state—the kind that inspire the government-sponsored conflagrations described above, especially those designed to suppress political dissent or erase inconvenient histories.

The removal of books from public libraries or public school libraries is a step below those, though it is also government censorship of a kind, since the books are removed by public employees, often at the behest of politicians. So too with curriculum battles: These fall far short of a state-ordered book burning, but they are too often driven by the same censorial impulse and smallness of mind. They are less troubling than outright bans, since they tend to be localized, applied primarily to children, and publicized in ways that make it possible for parents to hedge against them. But that does not mean they are unobjectionable.

There are always new fronts in the book wars. The end of May saw a bizarre extension of the school library book ban into the private sector, one that was clearly unconstitutional, politically motivated, and ultimately pointless. Two Virginia Republicans (a congressional candidate and a member of the House of Delegates) asked a court to place a restraining order on the sale of two books, requiring that purchasers be carded: Gender Queer, a graphic novel about nonbinary identity, and—somewhat inexplicably—the second book in a series that can best be described as faerie porn, A Court of Mist and Fury. The books have very little in common other than the fact that both deal with sex. But as anyone who has ever stood agog in the romance aisle of a Barnes & Noble knows, they are hardly the only two books to do so. Nor is Barnes & Noble the only venue where one might acquire such books, though the school board of the Virginia Beach City Public Schools already voted to remove Gender Queer from school libraries as well.

Nearly all of the books mentioned in this issue are, in fact, available to motivated American readers. “Let’s hope we don’t reach the stage of wholesale book burnings, as in Fahrenheit 451,” said Atwood, her blowtorch still smoking. “But if we do, let’s hope some books will prove unburnable—that they will travel underground, as prohibited books did in the Soviet Union.”

But there are more ways for governments to control what people can read than immediately identifiable book bans. Adults may still struggle to get access to books for all kinds of reasons related to government, from intellectual property fights to local zoning to incarceration.

There are also private entities who practice a form of book banning. While this form is the least worrying from a legal point of view—companies and individuals should have the right to do business with whomever they like—it is still troubling from a cultural perspective, and it seems to be on the rise. It includes self-censorship by authors and publishers as well as gatekeeping by booksellers.

All of these less blatant barriers are explored in the pages that follow, along with their more traditional counterparts. It’s worth noting that the one book we were unable to obtain in our research for this issue is a memoir that remains unpublished due to a gag order by the Securities and Exchange Commission, a final reminder not to be too distracted by the blowtorch while other books are being quietly snuffed out.

We hope this issue of Reason will serve as both a cautionary tale and a fun summer reading list, because in many cases a “banned” book is also a popular book. A mere whiff of the censor’s smoke can send hordes of curious novelty seekers off to acquire copies. Not all will stand the literary test of time, but the Holy Bible and faerie porn each have their place. Perhaps that place is poolside?

Romeo and Juliet
William Shakespeare
Sarah Skwire

Leviathan
Thomas Hobbes
Stephanie Slade

Lady Chatterley’s Lover
D.H. Lawrence
Ronald Bailey

And to Think That I Saw It on Mulberry Street
Dr. Seuss
Nick Gillespie

Fahrenheit 451
Ray Bradbury
Peter Suderman

Howl and Other Poems
Allen Ginsberg
Fiona Harrigan

To Kill a Mockingbird
Harper Lee
Jason Russell ‎

The Master and Margarita
Mikhail Bulgakov
Jesse Walker

Slaughterhouse-Five
Kurt Vonnegut
Eric Boehm

Maus
Art Spiegelman
Brian Doherty

Wiseguy
Nicholas Pileggi
Nancy Rommelmann

Beloved
Toni Morrison
Robby Soave

The Satanic Verses
Salman Rushdie
Liz Wolfe

Harry Potter and the Sorcerer’s Stone
J.K. Rowling
Natalie Dowzicky

The Adventures of Ook and Gluk: Kung-Fu Cavemen from the Future
Dav Pilkey
Katherine Mangu-Ward

I Am Jazz
Jessica Herthel and Jazz Jennings
Scott Shackford

Blood in the Water
Heather Ann Thompson
C.J. Ciaramella

When Harry Became Sally
Ryan T. Anderson
Elizabeth Nolan Brown

[REDACTED]
[REDACTED]
Christian Britschgi

The post Who Controls What Books You Can Read? appeared first on Reason.com.

from Latest https://ift.tt/7kwQ2YI
via IFTTT

In American Legion, Justice Gorsuch wrote a concurring opinion, joined by Justice Thomas. Gorsuch challenged the entire basis of Article III standing for Establishment Clause cases. In Gorsuch’s view, merely taking “offense” at some public display of religion was insufficient to establish an Article III injury. (I too have long questioned standing in cases like Van Orden v. Perry.) Gorsuch wrote:

In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his eyes,” Erznoznik v. Jacksonville (1975), or pursue a political solution. Today’s decision represents a welcome step toward restoring this Court’s recognition of these truths, and I respectfully concur in the judgment.

If this passage is correct, then why would someone suffering “offense” from a public display have a constitutional injury? Van Orden could have just have averted his eyes at the Ten Commandments display. (And don’t get me started on Flast v. Cohen.)

At the time, Gorsuch’s opinion garnered only two votes. Now, a majority of the Court implicitly endorsed Gorsuch’s reasoning. Kennedy v. Bremerton includes this passage:

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.” Lee. This Court has long recognized as well that “secondary school students are mature enough … to understand that a school does not endorse,” let alone coerce them to participate in, “speech that it merely permits on a nondiscriminatory basis.” Mergens. Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But “[o]ffense … does not equate to coercion.” Town of Greece.

If offense is not sufficient to trigger coercion, then what is the basis for an Article III injury? Moreover, the Court has sent a clear message: unless there is direct coercion, get over prayer in public. The government’s attempt to avoid a person from feeling “offense” is not sufficient to violate the coach’s Free Exercise and Free Speech rights.

Justice Sotomayor’s dissent contends that Gorsuch read Lee v. Weisman out of context:

Today’s Court quotes the Lee Court’s remark that enduring others’ speech is “part of learning how to live in a pluralistic society.'” The Lee Court, however, expressly concluded, in the very same paragraph, that “[t]his argument cannot prevail” in the school-prayer context because the notion that being subject to a “brief ” prayer in school is acceptable “overlooks a fundamental dynamic of the Constitution”: its “specific prohibition on … state intervention in religious affairs.” [FN7]

FN7: The Court further claims that Lee is distinguishable because it involved prayer at an event in which the school had ‘in every practical sense compelled attendance and participation in [a] religious exercise.” The Court in Lee, however, recognized expressly that attendance at the graduation ceremony was not mandatory and that students who attended only had to remain silent during and after the prayers.

And Sotomayor challenges the majority’s claim that “direct coercion” is needed under the Court’s precedents:

The Court claims that the District “never raised coercion concerns” simply because the District conceded that there was “‘no evidence that students [were] directly coerced to pray with Kennedy.'”  The Court’s suggestion that coercion must be “direc[t]” to be cognizable under the Establishment Clause is contrary to long-established precedent. The Court repeatedly has recognized that indirect coercion may raise serious establishment concerns, and that “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” Lee. Tellingly, none of this Court’s major cases involving school prayer concerned school practices that required students to do any more than listen silently to prayers, and some did not even formally require students to listen, instead providing that attendance was not mandatory. Nevertheless, the Court concluded that the practices were coercive as a constitutional matter.

Once again in Red Flag June, the Court has shifted doctrine. Lemon is gone. Plus cases involving coercion like Lee and Santa Fe have also been abrogated. The amount of doctrinal shifts this Term will take some time to digest.

The post No Offense, But It's Just A Prayer appeared first on Reason.com.

from Latest https://ift.tt/frGYPJh
via IFTTT

Shortly after Kennedy v. Bremerton School District was decided, I wrote that the Lemon test was finally interred. I observed that “Justice Gorsuch’s majority opinion does not overrule Lemon in so many words, but the import of the ruling is clear–follow Town of Greece, not Lemon.” Indeed, we do not get the magic words that we read in Dobbs:

Lemon was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. We hold that Lemon must be overruled.

Instead, Justice Gorsuch mustered this passage, which acted as if that Lemon was already overruled–or something like that.

What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion; see also Town of Greece v. Galloway (2014) . . . 

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.'” Town of Greece.

Not quite. Town of Greece did not overrule Lemon. And American Legion, which Justices Breyer and Kagan joined, did not formally overrule the precedent. Justice Sotomayor points out the obvious:

Despite all of this authority, the Court claims that it “long ago abandoned” both the “endorsement test” and this Court’s decision in Lemon. The Court chiefly cites the plurality opinion in American Legion v. American Humanist Assn. (2019) to support this contention. That plurality opinion, to be sure, criticized Lemon’s effort at establishing a “grand unified theory of the Establishment Clause” as poorly suited to the broad “array” of diverse establishment claims. All the Court in American Legion ultimately held, however, was that application of the Lemon test to “longstanding monuments, symbols, and practices” was ill-advised for reasons specific to those contexts. The only categorical rejection of Lemon in American Legion appeared in separate writings. See (KAVANAUGH, J., concurring); (THOMAS, J., concurring in judgment); (GORSUCH, J., concurring in judgment). [FN6] The Court now goes much further, overruling Lemon entirely and in all contexts. It is wrong to do so. . . .  It is true “that rigid application of the Lemon test does not solve every Establishment Clause problem,” but that does not mean that the test has no value. American Legion (KAGAN, J., concurring in part).

Ditto for Shurtleff, which did not overrule Lemon:

FN6: The Court also cites Shurtleff v. Boston (2022), as evidence that the Lemon test has been rejected. Again, while separate writings in Shurtleff criticized Lemon, the Court did not. The opinion of the Court simply applied the longstanding rule that, when the government does not speak for itself, it cannot exclude speech based on the speech’s “‘religious viewpoint.'” Shurtleff. The Court further infers Lemon‘s implicit overruling from recent decisions that do not apply its test. As explained above, however, not applying a test in a given case is a different matter from overruling it entirely and, moreover, the Court has never before questioned the relevance of endorsement in the school-prayer context.

Lemon was never actually overruled. And I’m not exactly sure what “abandoned” even means in this context.

So why did the Court not formally overrule Lemon? For starters, Coach Kennedy never made such a request. Indeed, he couldn’t have, as he did not bring claims under the Establishment Clause. Of course, the lower courts invoked Lemon to rule against Kennedy’d Free Exercise and Free Speech claims, but the Establishment Clause was not at issue.

Still, going forward the lower courts have “instructions” from the Supreme Court.

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.'” Town of Greece.

Though, I’m sure district court judge, somewhere will write, “Unless a majority of the Supreme Court formally overrules Lemon, I will continue to follow it.” Old precedents die hard.

Speaking of “text and history,” Justice Sotomayor included one of the first citations of Dobbs and Bruen in a judicial opinion.

The Court reserves any meaningful explanation of its history-and-tradition test for another day, content for now to disguise it as established law and move on. It should not escape notice, however, that the effects of the majority’s new rule could be profound. The problems with elevating history and tradition over purpose and precedent are well documented. See Dobbs (BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting) (explaining that the Framers “defined rights in general terms to permit future evolution in their scope and meaning”); New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) (BREYER, J., dissenting) (explaining the pitfalls of a “near-exclusive reliance on history” and offering examples of when this Court has “misread” history in the past); Brown v. Davenport (2022) (KAGAN, J., dissenting) (noting the inaccuracies risked when courts “play amateur historian”).

It is true that Lemon was not at issue in Carson. But the Court discussed it at some length. I will explain why in another post.

The post Why Didn't <i>Kennedy</i> Formally Overrule <i>Lemon</i>? appeared first on Reason.com.

from Latest https://ift.tt/ThNIkOq
via IFTTT

Trinity Lutheran v. Comer was decided in June 2017. At the time, Justice Kennedy was still the Court’s swing vote, and Justice Gorsuch was the junior justice. And Roberts made a decision. He included Footnote 3 in his opinion:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

Footnote 3 crafted some sort of distinction between “religious identity” and “religious uses.” That is, Trinity Lutheran only involved a case where the state excluded an institution because of its religious identity, or status. But the funding would buy tire scraps for a playground, which was not a religious use.

Justice Kennedy, as well as Justice Kagan joined Roberts’s opinion, including Footnote 3. But Justices Gorsuch and Thomas refused to join Footnote 3, thus depriving the Court of a majority opinion on that point. Gorsuch wrote a concurrence that cast doubt on the dichotomy in Footnote 3:

Second and for similar reasons, I am unable to join the footnoted observation, n. 3, that “[t]his case involves express discrimination based on religious identity with respect to playground resurfacing.” Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion.

Justice Sotomayor dissented in Trinity Lutheran, joined by Justice Ginsburg. She observed that the status/use line will not hold up:

In the end, the soundness of today’s decision may matter less than what it might enable tomorrow. The principle it establishes can be manipulated to call for a similar fate for lines drawn on the basis of religious use. See ante, at 1–3 (GORSUCH, J., concurring in part); see also ante, at 1–2 (THOMAS, J., concurring in part) (going further and suggesting that lines drawn on the basis of religious status amount to per se unconstitutional discrimination on the basis of religious belief).

Five years later, with Carson v. Makin, Footnote 3 is gone. Since it was never actually the opinion of the Court, technically, there was no need to overrule any precedent. But Chief Justice Roberts’s majority opinion stealthily eliminates the status/use distinction:

In Trinity Lutheran, the Missouri Constitution banned the use of public funds in aid of “any church, sect or denomination of religion.” We noted that the case involved “express discrimination based on religious identity,” which was sufficient unto the day in deciding it, and that our opinion did “not address religious uses of funding.” . . . Maine’s argument, however—along with the decision below and Justice Breyer’s dissent—is premised on precisely such a distinction.

That premise, however, misreads our precedents. In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Our Lady of Guadalupe School v. Morrissey-Berru (2020).

Farewell to Footnote 3. Roberts does it so effortlessly. Blink and you’ll miss it.

In the very next paragraph, Roberts endorses the reasoning from Gorsuch’s concurrence–that the distinction between status and use was always illusory:

Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism. Indeed, Maine concedes that the Department barely engages in any such scrutiny when enforcing the “nonsectarian” requirement. That suggests that any status-use distinction lacks a meaningful application not only in theory, but in practice as well.In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.

Justice Sotomayor dissented in Carson. And she has a see-I-told-you-so moment:

As Justice Breyer explains, this status-use distinction readily distinguishes this case from Trinity Lutheran and Espinoza. I warned in Trinity Lutheran, however, that the Court’s analysis could “be manipulated to call for a similar fate for lines drawn on the basis of religious use.” That fear has come to fruition: The Court now holds for the first time that “any status-use distinction” is immaterial in both “theory” and “practice.” It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.

And I have to think that Justice Kagan had some buyer’s remorse. She joined the Trinity Lutheran majority, including Footnote 3, perhaps in the hopes of forestalling a bigger defeat. Five years later, we get Carson v. Makin.

So many precedents have been overruled this term that the demise of Footnote 3 has flown under the radar. Red Flag June was one for the ages.

The post Farewell to Footnote 3 of <i>Trinity Lutheran</i> appeared first on Reason.com.

from Latest https://ift.tt/W7oxt8k
via IFTTT