Cases by Issue - Establishment of Religion

Cutter v. Wilkinson - Oral Argument

Fri, 09 Jan 2009 14:49:00 +0000

Case:

Cutter v. Wilkinson

Media File:

03-9877_20050321-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Clement

Chief Justice Rehnquist: We'll hear argument next in No. 03-9877, Jon Cutter v. Reginald Wilkinson.

Mr. Clement.

Mr. Clement: Mr. Chief Justice, and may it please the Court:

When the government acts to remove government-imposed burdens on religious exercise, it does not violate the Establishment Clause.

Rather, as this Court put the point in Zorach against Clauson, when the government eases those kind of burdens, it follows the best of our traditions.

The Religious Land Use and Institutionalized Persons Act, or RLUIPA, eases government burdens on restrictions by having institutions and prison officials examine burdens on religious exercise and remove unjustified, substantial burdens.

Chief Justice Rehnquist: But, you know, when you say it eases burdens, it doesn't just ease burdens imposed by the Federal Government.

It eases burdens imposed by State governments.

Mr. Clement: That's exactly right, Mr. Chief Justice, but I think that... that that doesn't make any substantial difference, in part, I think because if you think about certainly this application of RLUIPA, it's Spending Clause legislation.

And spending legislation often takes the form of giving the States an incentive to take action on their own.

And in this sense, I think you can understand this legislation as giving the States an opportunity to remove their own burdens on religious exercise.

And that's precisely how it works in practice.

The relevant action that a State takes is State action removing its own burdens, not Federal action imposed on the States.

And I think that's consistent with the analysis of this Court in the Dole case where the Federal Government, on the assumption of this Court, didn't have the direct power under the 21st Amendment to raise the drinking age, but it could give the option to the States to exercise their power to do it.

So I do think in the end, the burdens that are removed here are attributable to the State of Ohio, not to the Federal Government.

It is also true that the standard that's imposed by RLUIPA is a more exacting standard than that imposed by the Federal Constitution itself.

But I don't think providing for greater accommodation of religious exercise than the Federal Constitution creates an Establishment Clause problem.

Chief Justice Rehnquist: But in... in the City of Boerne, didn't we say that Congress couldn't come in and simply rewrite some part of the Constitution to make it read differently than we had?

Mr. Clement: Absolutely, Mr. Chief Justice, but I don't think this case poses the same problems as City of Boerne.

First of all, this really isn't an effort to rewrite a rule of decision for all cases the way that RFRA was.

Congress in this legislation targeted two areas where there were particular problems with respect to religious exercise, and in those contexts, it addressed a different standard.

Now, as I say, that standard is higher, but so are the standards of over half of the States which also apply a heightened scrutiny test either as a matter of State constitutional law or State law.

Justice Scalia: Well, RFRA didn't involve a... a limitation to situations in which Federal funds were involved, and as I understand this statute does.

Mr. Clement: That is also true.

I mean, there... there is... to be sure there is--

Justice Scalia: More than also.

I... that seems to me the principal difference between this and RFRA.

Mr. Clement: --Well, I take your point, Justice Scalia.

I would... I would clarify that there is the potential for applications to the statute under the Commerce Clause.

We don't think that's really appropriately presented here.

We also think that with respect to State prisons in all their applications, they will be Spending Clause applications.

Justice Ginsburg: Is that... what you're saying is academic because the statute doesn't require a Federal spending hook.

It says it has the other commerce peg.

I take it you... you gave a pragmatic answer to that, that every State in fact gets Federal funds for their prison systems.

Mr. Clement: That's right, Justice Ginsburg, and I think the fact that there may be more than one hook for this legislation in certain applications shouldn't make any constitutional difference.

And I think here it is Spending Clause legislation as it applies to the State of Ohio.

I think that's conceded.

They... they take issue with whether it's valid.

Justice Stevens: But, Mr. Clement, it seems to me the Spending Clause aspect cuts in the other direction, if we're just focusing on the Establishment Clause.

The fact that Federal money is involved, why does that make your burden any less in defending the... the statute under the Establishment Clause?

Mr. Clement: Well, Justice Stevens, I don't think the fact that there's money involved makes it harder or easier from a Spending Clause perspective.

I think from the perspective of why this case is different from Boerne, the fact that it's Spending Clause and Commerce Clause and not section 5 legislation makes a big difference.

But I certainly don't want to leave you with the impression that there's anything constitutionally problematic because there's Federal money involved because, of course, this Court has upheld Federal Spending Clause legislation in religion areas in cases like Zobrest, Mergens, Agostini, Mitchell against Helms.

Justice Stevens: Do you... do you think the Establishment Clause issue in this case would be the same as the Establishment Clause issue in City of Boerne if we... if the Court had reached the Establishment Clause issue in that case?

Mr. Clement: No, I don't, Justice Stevens.

Or another way of answering that is I would say that even though you thought there was an Establishment Clause problem in the City of Boerne case, I don't think you need to find one here.

And part of that is because this is more targeted legislation, and it particularly deals, as... as it comes to this Court in this application, with the exercise of religion in prisons.

And I think that's an area like the military where the Government is necessarily going to be involved with religion in a way that it otherwise wouldn't be.

Justice O'Connor: And yet, it... it provides an unusual framework or incentive, if you will, in the prison context to get religion.

If you can find some religious group that espouses drinking beer every day or other alcoholic beverages or taking certain amounts of marijuana or no telling what or having certain clothing or other things that would alter the conditions of the prison environment, there's a real incentive here to get religion.

[Laughter]

And the--

Mr. Clement: Justice O'Connor--

Justice O'Connor: --Federal Government seems to be trying to provide those incentives.

Is that a problem?

Mr. Clement: --Well, Justice O'Connor, I don't think upon analysis it is, and I think there's a couple of reasons why that's so.

First of all, this is not an absolute entitlement to get your religious beer at 5:00 p.m. every day.

It is a balancing test, and I think things like getting beer every day, getting marijuana inside prison walls would not satisfy the test.

Justice O'Connor: Well, the... the language of the statute is pretty strong: unless the government demonstrates that the imposition is the least restrictive means and in furtherance of a compelling legislative interest.

It puts quite a burden on the State.

Mr. Clement: Well, it does, Justice O'Connor, but just to take a step back, I mean, applying that same standard in the Smith case, you yourself thought that a general law banning marijuana use outside or... or peyote use outside--

Justice O'Connor: Yes, I think it was.

Mr. Clement: --peyote outside of prison would be justified even under that standard.

I would think, a fortiori, it would be justified within prison walls.

I want to make another point about the incentives, though, which I think is important.

Every State in the Union provides some degree of accommodation for religion, and in many States it's majoritarian religions that are accommodated.

Now, if there's going be some incentive to engage in religiosity in prison in order to take advantage of things offered for religion that aren't available for something else, at least RLUIPA has the virtue of making sure that all religions are accommodated neutrally.

So if there's any incentive, it's an incentive for religion over irreligion as opposed to between sects... sects of religions, and I think that's the way you would have without RLUIPA involved.

The other point I want to make is although there may be some extravagant claims of certain religions that would seem quite enticing, much religious exercise in many of the reported cases involve things that I don't think people are necessarily lining up to do.

I mean, there are a number of lower court cases dealing with the availability of kosher food, and in prison what that means as a practical matter, is generally you are going to get cold food rather than hot food.

And I don't think--

Justice Ginsburg: What about garb that is said to be associated with the religion but also is used as a cue for gang membership?

Let's say a beard.

This religion requires me to wear a beard.

Mr. Clement: --Well, Justice Ginsburg, I think... and we cite a few cases in footnote 2 of our reply brief that suggest that in dealing with legitimate concerns about using prison... religious symbols or other religious items as a gang signifier or a gang identifier, that the... that there have been cases where the courts, even applying the heightened standard or RLUIPA or RFRA, have deferred to the government officials.

I also think, though, it's worth noting how the Federal Government and the Bureau of Prisons has dealt with the concern that religious medallions, as opposed to beards, would be used for gang identification or gang signification.

Ohio, I take it, takes the position that if you have a medallion that could be used for those purposes, you can't have it within prison walls at all.

The Bureau of Prisons, by contrast, takes the position that you can have the medallion, but you have to wear it inside your shirt.

So it can't be used for prison signification purposes or gang identification purposes.

And I think that shows the kind of reasonable accommodation that RLUIPA or RFRA, as it applies to the Federal Bureau of Prisons--

Justice Ginsburg: What... what about a religion that it's a genuine tenet of the religion that the races are to be separated and the person says, the accommodation I want is never to be celled with someone who is not of my race?

Mr. Clement: --I think in a case like that... I mean, obviously, this Court's recent decision in Johnson would suggest that... that the prison officials are in a difficult position there and I think they could not accede to that request.

And I think complying with the Equal Protection Clause in that context would itself be a compelling interest under the statute.

And I think this Court in Widmar against Vincent, for example, suggested that avoiding Establishment Clause problems is a sufficient compelling interest.

I would think equally avoiding the Equal Protection Clause violation in that context would also be a compelling interest, and I don't think there would be a least restrictive alternative.

And so I think that the statute... there would be no statutory violation in refusing that particular accommodation.

I think there... these show that there are ways to administer this statute in a way that's respectful of the decisions of local prison officials but also does make sure that they have a degree of sensitivity to these claims for religious exercise.

Justice O'Connor: Does it... does the statute require the prison officials to evaluate the bona fides of the particular religion that's espoused?

Isn't one of the groups here a Satanist group?

So the religion... the bona fides of the group have to be reviewed by the prison authorities.

Mr. Clement: Well, Justice O'Connor, no more so than under the Free... the Free Exercise Clause itself.

I mean... and as this case, of course, comes to this Court, the substantiality of the religious beliefs and that they are actually held by these individuals has been stipulated to.

Justice O'Connor: We don't have to decide it here, but it's looming.

And when it goes back, if it does, that will have to be resolved in this and in every case.

Mr. Clement: That's right, Justice O'Connor, but that's true under the Free Exercise Clause as well.

So even the Sixth Circuit, that obviously had some problems with the statute, understood that on that score there's no more entanglement with religion under RLUIPA than there is under the Free Exercise Clause itself.

Chief Justice Rehnquist: Haven't we said in at least one of our cases that the government can't favor religion over irreligion?

Mr. Clement: That's right, Mr. Chief Justice, but this Court has been clear in the context of legislative accommodations of religion in particular to make clear that that preference of religion over irreligion doesn't mean that the government cannot provide legislative accommodations of religion without providing benefits for secular organizations as well.

That was the clear holding of this Court in Amos.

And I think that although this Court has expressed concerns about religious accommodations when there's no guarantee that the religious accommodation will be provided to other sects... take, for example, the Kiryas Joel case.

This Court has been quite clear that there is not a constitutional problem in favoring religion over irreligion in providing legislative accommodations for religion.

And as I said, in... in Zorach against Clauson, this Court noted that that's not just the absence of a constitutional problem, but there's really a constitutional virtue in the legislature acting to accommodate religion.

The Court made basically the same point in Smith in saying that even though the Free Exercise Clause did not require the special accommodation or exemption for peyote, the legislatures could do so and in doing so, they would be furthering constitutional values.

If I could say a few words about the Spending Clause claim that is brought by Ohio in this case.

They suggest that there's a difficulty with this legislation under the Spending Clause.

Now, the court below--

Chief Justice Rehnquist: Is that before us on the questions presented?

Mr. Clement: --Well, I think it is not in the questions presented themselves, I don't think, but I think it would be fairly open to this Court to reach it because it would be an alternative ground to support the judgment below.

That said, this Court doesn't have to reach it and its practice in recent cases has been when there's one constitutional claim that is... that the Court has ruled on below, it doesn't necessarily reach the other... the other constitutional claims.

The Court did that in cases like Oakland Cannabis and the Pierce County case.

And we would urge the same course here because, although the courts have divided on this Establishment Clause issue, the courts have not divided on the Spending Clause issue.

All the courts that have reached it have upheld it as valid Spending Clause legislation.

And I think that reflects the fact that there is a clear nexus here between the Federal funds and the Federal conditions that are being imposed.

If the Federal Government is going to provide money, over $1 million to Ohio, to have prisoner meals, then certainly the Federal Government can insist that kosher meals are among the available options.

And so too if the... if the Federal Government is going to provide monies for Ohio to build prisons, they can ensure that those prisons are safe and are operated consistent with Federal policy such that there's not discrimination on the basis of race or religion.

The last issue in the case, of course, is the Commerce Clause issue, and on that issue, no court below reached the issue.

And we think this Court's recent admonition in the Sabri case that facial challenges are best when infrequent, applies with particular force here because--

Justice Scalia: I don't... I don't understand, Mr. Clement, how your second point strengthens your first point.

That is to say, if we disagree with your first point, namely that the institutionalized persons provisions are consistent with the Establishment Clause, we think that they contradict the Establishment Clause, they couldn't possibly be saved by your second point.

Can you require as a... as a condition of... under the Spending Clause that a State violate the Establishment Clause?

Mr. Clement: --No, of course not, Justice Scalia, and I must have misspoke.

My point is they raise three arguments that are all alternative arguments to support the judgment below.

My burden is to defeat all three of them to show... if the Court reaches them.

So I have to show that there's no Establishment Clause violation, which we... we've certainly made that argument in the brief and here today, and that there's no Spending Clause violation, and that there's no Commerce Clause violation.

The... in this case the Commerce Clause claim has a completely abstract quality, and indeed, the only temptation to reach the issue at all would be that the... since RLUIPA has a jurisdictional element, the resolution of the Commerce Clause is so clear that it might be tempting to reach it.

But I think the better course would be for this Court to allow that issue to be sorted out in the... in the lower courts.

If there are no further questions, I would reserve time for rebuttal.

Argument of David A. Goldberger

Chief Justice Rehnquist: Thank you, Mr. Clement.

Mr. Goldberger, we'll hear from you.

Mr. Goldberger: Mr. Chief Justice Rehnquist, and may it please the Court:

This case comes before the Court on a motion to dismiss, and the facts, the underlying facts, involving the motion to dismiss are in dispute, and it's a serious dispute.

And those should be reserved for... for the court below, in particular the claims that our clients' religions are affiliated with gang activities, but there are serious disputes about that.

There is a Wicca chaplain that's been hired by the Department of Corrections in Wisconsin.

Two of my former students, who are upstanding members of the bar in every respect, are Asatrus, so that these are matters that should be preserved for the court below.

This Court has made... asked many questions about the accommodation of religion, and the suggestion is, well, isn't there favoritism?

Doesn't it encourage favoritism one way or the other?

But the answer to each of those questions is the same with respect to the current accommodations already provided by the Ohio Department of Corrections with respect to mainstream religions, and in fact, we believe on remand, we will be able to show that there is a preference for accommodating mainstream religions as opposed to non-mainstream religions.

Similarly, there has... there are... there have been questions by this Court that... that the standard imposed on the State of Ohio by RLUIPA is this particularly difficult or tortuous standard.

In fact, under State law in Humphrey v. Lane, which is cited in our brief, the State of Ohio Supreme Court has already imposed a similar standard with regard to the religious accommodation claims of prison guards.

Justice Scalia: Is Satanism a non-mainstream religion?

Mr. Goldberger: With all due respect, Your Honor, I understand that there is some uncomfortable feeling about the nature of my clients' religion.

As the Court will note in a... a footnote in our brief, it has been reported in the press that there is an adherent in the Royal Navy of Satanism, and the Royal Navy has agreed that if he's killed in the line of duty that there will be religious rights at the end consistent with his religion and, in fact, it amounts to a recognition of his religion.

Justice Scalia: What does this have to do with it?

The Royal Navy you say?

Mr. Goldberger: Well, I--

[Laughter]

Justice Scalia: Our Royal Navy?

[Laughter]

Mr. Goldberger: The answer is yes then.

It is a non-mainstream religion.

And I think that it's important for us to assure that religious groups of all stripes are... are accommodated in the... in the context--

Justice Ginsburg: To what extent?

I asked the... the racist... the religion that says God wanted the races to be separated and the accommodation is do not cell me with someone of another race.

Mr. Goldberger: --I believe that there is... it... the statute is pretty clear that if there is a... if it's compelling or requiring the State of Ohio to engage in an unconstitutional activity... and that would be a segregation of the races... that there's a compelling justification... or a compelling governmental interest in not complying with the statute or saying that the statute does not apply under these circumstances.

Justice Ginsburg: How about racist literature but it's under the aegis of a religious organization?

And that... suppose the prison does not permit, say, a member of the Aryan Nation to get that racist literature... to get racist literature but--

Mr. Goldberger: To the extent that there is bona fide religious literature that is racist, there are... we believe that the Constitution permits Congress or any legislative body to accommodate religion in isolation from other religious right--

Chief Justice Rehnquist: Well, when you--

Mr. Goldberger: --fundamental rights.

Chief Justice Rehnquist: --When you use the term bona fide, you're introducing a new kind of factor.

Do courts evaluate the bona fides of someone claiming a religion?

Mr. Goldberger: I believe they... as a matter of course, prison officials have to determine whether there's a good faith request for religious accommodation or whether the person is trying to seek something under... as a ruse.

Justice Kennedy: I take it we've done that in the conscientious objector cases, United States v. Seeger and Gillette.

Mr. Goldberger: That's correct.

But to let me finish my... my answer to Justice Ginsburg, if... if this Court is of the view... or members of this Court are of the view that it would be content discrimination, for example, although we believe that you can accommodate one fundamental right separately from the other fundamental rights, then of course, if there were a First Amendment violation, that too would be a compelling governmental interest in justifying refusal to apply RLUIPA.

So that there is no serious problem here.

And in fact, there is no reported case that any racist literature has ever been permitted in... into the prisons that we've been able to find.

Justice Ginsburg: --Well, the content discrimination, I take it, would be raised by someone who wants to get this for political or psychological reasons--

Mr. Goldberger: That's--

Justice Ginsburg: --you would say, I'm not challenging the right of the... as a member of this religious sect.

I just say, me too.

Mr. Goldberger: --Well, as I say, to the extent that that's right, if there were content discrimination along those lines and... and the Court said that there could not be... it was the Court's view that it could not be accommodated for religion only, then of course the... then there would be a compelling governmental interest in avoiding content discrimination.

In terms of whether or not there's a compelling justification of dealing with inflammatory literature, I don't think that's in dispute in this case.

Justice Kennedy: Well, I... I take it underlying Justice Ginsburg's question is... is the concern that this accommodation is unequal because there are other First Amendment rights that are not given the... that are not given the same precedence.

Mr. Goldberger: Well, first of all--

Justice Kennedy: That... that was at least an underlying concern of her question, and I think it's a legitimate concern.

Mr. Goldberger: --Well, as... as I read Amos, Amos says that the accommodation of religion need not come--

Justice Kennedy: Well, but in Amos, the Court was just... the... the government was just saying that one of its own statutes could be accommodated.

This is something different.

Mr. Goldberger: --Well, it's not... I'm not sure that it's different for constitutional purposes, that if there is a differential accommodation which the Court concludes violates the First Amendment rights of someone else because there's content discrimination, I'm not... there is no reason to treat the source of the accommodation as dispositive.

It's whether... it is the presence of the accommodation and whether it's broad enough or narrow enough.

On the other hand, the... we... we do want to make clear that there are numerous accommodations that involve First Amendment rights that do not overlap with... with religious exercise or accommodation of religious exercise.

To the extent that there is political gatherings, they're not entitled under the First Amendment to the... they're not accommodated in the same way that religious congregations in prison are accommodated.

And this Court so far has found there to be no constitutional violation for that distinction.

And to the extent that there's a compelling governmental interest, there is little doubt that the... that the prison officials can simply say no.

This... we will not accommodate it.

We're not required to accommodate it under the statute.

The... it is important to note, that the... these same accommodations are routinely granted to mainstream religions and that they do not shift burdens to third parties.

There's been substantial argument that there is a substantial shifting of burdens to third parties.

In fact, where third party claims have been made by the State of Ohio was that basically that the cost of security is increased because now it takes more... or the cost of prison administration is increased because it takes more time to take care of these claims and requests for accommodation than there would be if they didn't have to attend to these--

Justice Scalia: I'm... I'm sorry.

You've lost me.

I don't know what you mean about shifting burdens to third parties.

What--

Mr. Goldberger: --Well, the argument is that when, for example, a religious accommodation forces... and... and... the third parties to chip in, as they had to do in Caldor, for example, private third parties, that that renders the accommodation unconstitutional.

And the State has been arguing that the lifting of burdens on the religious exercise of our clients makes it harder for their prison guards--

Argument of Douglas R. Cole

Chief Justice Rehnquist: Thank you, Mr. Goldberger.

Mr. Cole, we'll hear from you.

Mr. Cole: Mr. Chief Justice, and may it please the Court:

In prison's unique environment, RLUIPA violates the Constitution.

It directly and impermissibly advances religion and it would have to be... have to be... perceived by objective observers as endorsement.

Justice Souter: Let me ask you this... this question because it... it... I think it goes to the... the heart of what I think is the problem in this case.

If we are going to recognize a sphere of accommodation, which we have done previously, I think we have to recognize that the... that the object of accommodating and the effect of accommodating is, in one sense, to benefit... I mean, in an obvious sense, is to benefit religion.

By recognizing a sphere of accommodation, in effect, I think the Court has said there is a sphere in which religion can be benefitted that does not rise necessarily to the level of government proselytization or... or government endorsement.

And it seems to me that the argument that you're making is that if the government endorses at all, it's immediately in... in the... the realm of establishment.

Am I... am I missing something in your argument?

Mr. Cole: Well, I think you are, Your Honor, and if our brief came across that way, I... I think it overstates the line that we're asking this Court to draw.

The Court has recognized, in talking about accommodations, that of course accommodations by their nature benefit religion.

That's part of an accommodation and could be said to have the effect.

But the Court has said then we must draw lines.

That is, the Court has recognized that you can't just say, oh, it's an accommodation which means that's fine, it's always going to be fine if it's an accommodation.

In fact, Justice O'Connor said we need to draw lines because otherwise everything will just become, oh, that's an accommodation.

Justice Souter: All right.

And... and why is the line violated here?

Mr. Cole: The line is violated here, Your Honor, because of the unique incentives and burdens that arise in the prison context.

Justice O'Connor: Well, what the statute appears to be doing is to try to go back to the pre-Employment Division v. Smith case standard under the Free Exercise Clause, which did allow for accommodation of religion.

And that appears to be what this statute is designed to do.

Mr. Cole: But in... in prison's unique environment, Your Honor, where there are so many deprivations of liberty and then to say the one... one way you can get out from under the thumb of all these prison regulations is to claim religion, and that's going to give you a powerful weapon not again to--

Justice O'Connor: But... but before Employment Division v. Smith, wouldn't we have had the same question arise in the prison context, and we would have dealt with it under the then-standards.

Mr. Cole: --But... but the Court has... has always articulated that the rules... well, in Turner and O'Lone, the Court articulated that the rules are different in prison, citing to the intractable problems of prison administration and the... and the problems of subjecting--

Justice O'Connor: But had the Court ever said that the Free Exercise Clause couldn't be applied in the prison context?

Mr. Cole: --No, Your Honor.

Going... going back to the Beto case, the Court said free exercise applies in prison, but in O'Lone, the Court said it applies in prison but the standard what we're going to use is one that's very similar to... to rational basis.

Justice Souter: Okay.

Then I think you're saying that in order to exceed what free exercise requires in a prison necessarily forces you into establishment.

And I think you're saying the reason it does so is that there are so many incentives on the part of prisoners to claim religion, that that's the only way you can sort of keep the genie in the bottle.

Isn't that the... the essence of your argument?

Mr. Cole: We're not asking for that bright line rule, Your Honor.

It could well be the case that providing kosher meals, for instance, whether that's required by the Free Exercise Clause or not, it might go marginally beyond what free exercise requires.

That's an accommodation that would be perfectly legitimate.

But to have a rule that says anytime you bring any request of any kind for an accommodation from any rule, it's going to be treated differently and better because it's religion--

Justice Souter: Well, it... but... but that is not what the rule says.

Number one, as... as your brother on the other side pointed out, there's got to be some determination made as a threshold matter as to whether this is even a religious claim or... or whether it's just gaming the system.

So there's nothing automatic.

Number two, if there are, as... as there frequently will be, in the prison context important governmental interests which can only be served by denying the... the request, the request can be denied.

And it seems to me that if these are not sufficient recognitions of the... of the prison context, then I don't know what kind of a rule we can have that would satisfy you except to say if it isn't absolutely required by free exercise, it is establishment.

Mr. Cole: --Well, Your Honor, I don't think we need to go that far.

I... I think we could look at given types of accommodations and say if a legislative determination is made that this type of accommodation with respect to this type of request is appropriate, based on a balancing of all the factors to consider in that particular case--

Justice Souter: You... you--

Mr. Cole: --that might not slide--

Justice Souter: --You mean specific accommodations like you can have kosher foods, you can wear a religious medal, you can have a tatoo?

I mean, you're... you're asking the legislature to be that specific.

Mr. Cole: --Well, a narrow, targeted... I guess the point is, Your Honor, a narrow, targeted accommodation would be different in our view than this broad, wonder bus approach to accommodation.

Justice Souter: It... it would also be rather a discriminatory one, wouldn't it?

I mean, one... one point that we have got to be concerned about, whether we're dealing with accommodation or whether we're dealing with... with flat-out establishment, is distinction among religions.

And I think you're saying if they do distinguish among religions, we don't have this problem, but I think that lands you from the frying pan into the fire.

Mr. Cole: No, Your Honor, I... I don't believe so because I think if, for instance, the legislature said, you... you shall, absent some compelling need, provide prisoners with a diet that meets their religious requirements, that would not discriminate among religions.

It would be narrowly tailored to some perceived problem that might exist.

Justice Souter: A guy comes along in a different religion and says, we're omnivorous, but we got to... we got to wear medals.

No statute that says medals are okay.

It... it... you know, I realize the level of generality in your example is higher.

The... the discrimination is not quite so blatant, but it's a pretty tough job to come up with... would be a tough job to come up with statutes without picking and choosing among religious demands.

Mr. Cole: And, Your Honor, we believe that in prison's unique environment, to the extent you go beyond the Free Exercise Clause, it raises special problems and special concerns that need to be dealt with--

Justice Souter: Why can't they--

Mr. Cole: --on a case by case basis.

Justice Souter: --But why can't they be dealt with under the statute as it is written, saying that if you... if it is a bona fide request, and you, the prison, determine that in fact you... you have a compelling State interest that cannot be served in any other way, you can say no?

Why is that insufficient and... and why does that... why is that, therefore, the reason that... that jumps us into an Establishment Clause violation every time?

Mr. Cole: It's insufficient, Your Honor, because it doesn't change the underlying fact that the request itself, whatever the ultimate outcome on the request is, the request itself gets treated differently and better merely because it's religion.

This is a--

Justice Souter: Well, are you saying that... that a statute is unconstitutional to recognize a prisoner's right to free exercise unless it also has a... a kind of a litany of sections recognizing speech rights, recognizing privacy rights, et cetera?

Mr. Cole: --No, Your Honor.

I'm... I'm not suggesting that.

Justice Souter: Then it's got to single out religion.

Mr. Cole: And... and as the Court noted in Amos, these type of statutes are necessarily going to single out religion, but that doesn't shield them from Establishment Clause scrutiny just because they take the form of being directed at religion and providing a benefit that's... that's labeled as an accommodation.

I mean, for instance, Congress could say, look, we think it's difficult for State prisoners to practice their religious beliefs when they can't go to church.

So absent some compelling State interest and least restrictive alternatives, the prisons need to arrange to release prisoners once a week to go to the church or synagogue of their choice.

Well, that would provide an awfully powerful incentive inside prison walls for prisoners to... to claim religion.

Justice Souter: Sure it would.

Justice Breyer: So maybe that's--

Justice Souter: And if you did it under the statute, you would clearly have a reason for saying no.

Justice Scalia: Mr. Cole, are you sure that this statute doesn't go beyond pre-Smith... our pre-Smith law?

I'm not aware that our pre-Smith law would have defined religious exercise as broadly as this statute defines it.

I guess this is something Mr. Clement ought to speak to as well.

It says, the term religious exercise includes any exercise of religion whether or not compelled by or central to a system of religious belief.

Mr. Cole: Thank you, Your Honor.

That is--

Justice Scalia: Did our prior Smith cases go that far?

I'm not aware that--

Mr. Cole: --No, they did not, Your Honor, and I think that's an important as well, that once someone has an... a bona fide religion and... and prison officials can challenge whether this is in fact a religious set of beliefs.

But if they have a religious set of beliefs and if they are sincere, then you can't challenge this particular request as not being mandated by the religion.

Justice Scalia: --They don't even have to say my... my religion requires me not to eat this food.

They just say, you know, I'm--

Mr. Cole: For religious reasons, I would prefer to do this.

Justice Scalia: --Yes.

Justice Breyer: --What is your argument in response to Justice Souter?

You said it is not the following.

It is not that the State has to list, along with these religious matters, the Second Amendment, the First Amendment, et cetera.

It's not that.

You then seem to say that the argument is that a person who files a piece of paper and claims to be religious, that they have to consider it, and it's impelled only by religion.

I suppose the same thing is true of a church that applies for a tax exemption.

So I don't think that you could say that automatically that fact that they're going to give the church a tax exemption or that they're going to give the religious person some special consideration, that that in and of itself violates the Establishment Clause.

Very well.

What does?

Mr. Cole: Well, Your Honor, I wish I could draw a brighter line rule than--

Justice Breyer: No.

But I just need to know where you're going--

Mr. Cole: --Your Honor--

Justice Breyer: --generally.

I don't need a bright line rule.

I'm just trying to find out what it is about this that violates the clause if it isn't the first thing or the second thing that I mentioned.

Mr. Cole: --It's the magnitude by which Congress has enhanced the religious right.

That is, we compare what the Constitution requires State prison officials to do and we say, how far has Congress moved the ball.

Justice Breyer: Fine.

Now, in respect to that, we have two points.

One was Justice O'Connor's I think, which is that Congress is not enlarging it, but for my second qualification, beyond what it would have been if Smith had never been decided.

And the second is Justice Scalia's point, which is but there is one respect in which Congress did enlarge it, namely, that the right doesn't have... the belief doesn't have to be central.

It could be... well, he just read that.

So is your whole argument then pinned on that latter point?

And if it is not, again, what is it?

Mr. Cole: Well, our argument is pinned on this Court's decisions in Turner and O'Lone, which we see as establishing the baseline for what type... for what the Constitution requires in terms of free exercise in prison, and then we'll use that baseline and compare the standard imposed there to the standard Congress is seeking to impose through RLUIPA and compare the magnitude of the two, understanding, as this Court has said in Lemon, that lines of demarcation are difficult to perceive.

It's difficult to say exactly where that line should be.

Justice Breyer: You're saying if Turner had come up prior to Smith, the Court would have said that Turner trumps pre-Smith law, and you don't have to follow pre-Smith law in the prison.

Mr. Cole: I... I believe so, Your Honor, given prison's unique environment.

Justice Breyer: I understand--

Mr. Cole: I believe Turner and O'Lone are prison cases that talk about what the Constitution means in prison, understanding that in prison there need to be changes to what we would otherwise see as the inmates' constitutional rights if they were not in prison.

Justice Breyer: --Now, I... I understand the argument now, which has been helpful.

Very well.

From the prison's point of view, why is it so burdensome since you would have thought security is a compelling interest, prison administration is a compelling interest, so that really all we have to do is think about this and look to see whether there isn't some reasonable way of accommodating the request?

Mr. Cole: Well, Your Honor, I think that the burdens in the prison environment are twofold.

First, RLUIPA forces prison officials to change the balance they would otherwise strike between safety and accommodation, and by changing that balance, changing the margin of safety, if you will, they're now imposing risks on the other inmates that are in prison.

And these aren't merely--

Justice Scalia: I think... I think you may exaggerate what it takes to establish a compelling State interest.

I mean, we... this... this Court held in the... in the pre-Smith days that it was a compelling State interest to... to prevent members of the Air Force from wearing yarmulkes.

I mean, if that's a compelling State interest, I think it's pretty easy to get most anything declared a... a compelling State interest under this statute, don't you think?

Mr. Cole: --Yes, Your Honor.

And compelling State interest doesn't present a problem to the State of Ohio or to the other States that are operating under this statute.

What it... what presents the problem is the least restrictive alternative part of that which subjects State prison officials in their day-to-day judgments regarding prison operations to a strict scrutiny analysis on the back end.

Justice Scalia: And that goes beyond pre-Smith too, doesn't it?

Least restrictive alternative.

Mr. Cole: The... the least restrictive alternative, which is what puts the teeth in RLUIPA and what's... what creates the problem--

Justice Ginsburg: We now have some experience in the Federal system where the same standards apply under RFRA.

And you are positing terrible disturbance of prison administration in the... what is it... 6 years that... that RFRA has been in force for Federal prisons.

Have there been... has there been this terrible disruption?

Have there been... have the accommodations required so much of the prison administrators?

Mr. Cole: --Well, the United States claims no, Your Honor, of course.

But when we look back at the experience of the States with RFRA, before it was declared unconstitutional, we presented substantial evidence in the... in the joint appendix with regard to the way in which there was an explosion of demands for accommodations by prisoners from previously unheard of religions.

There was an expansion... an explosion of claims of conversion within--

Justice Ginsburg: Yes, but now that some of that has gotten sorted out through the experience of the Bureau of Prisons on the Federal side, one would expect there would be less of those far-out claims.

The... you would expect when a statute is new, that there might be some claims that we would recognize as frivolous after there's been experience under it.

Mr. Cole: --That's correct, Your Honor, but the difficulty that doesn't seem to go away with the least restrictive alternative test is... is the possibility, as this Court noted in Turner, that every judgment every day is subject to some court somewhere finding that there was a less restrictive way of achieving the goal.

And... and we see that--

Justice Breyer: This is true.

Now there you're in the dilemma.

I mean, you're putting yourself there in the same position that virtually every official is in in the United States but for judges who have... who have to worry about the court of appeals.

But anyway, the... the--

[Laughter]

You see... now, the answer to that argument in your case, you're in a vice.

They put you in a... in a kind of pincers because where you have a good argument, they say, well, that doesn't violate the statute, and where your claim is weak, they say, well, it shouldn't be a... it should violate the statute.

And the difficulty with being in pincers like that is you can't win.

And the virtue of it is you shouldn't win.

All right.

So... so how do you get out of this... of the... of that kind of an argument?

Mr. Cole: --Well, that's not particularly encouraging, Your Honor, but--

[Laughter]

Justice Breyer: No, but... your point.

Mr. Cole: Yes, Your Honor.

And... and I guess all I can do is go back and compare the accommodation if that's what this is that's at issue here with that that was at issue in Amos to say these employers don't need to comply with this one Federal statute and this one set of obligations.

And I asked, well, okay, so an employer.

Is that going to make IBM switch from being a computer manufacturer to being a religious services provider because, boy, if we do that, we can get out from underneath title VII's nondiscrimination mandate?

I don't think so.

But if I look in prison and I say, what is going to be the effect on the ground with respect to people claiming religion or converting to religion if I tell them there's going to be a different regulatory regime that applies to you--

Justice Souter: Then why hasn't that been the effect on the Federal ground.

Mr. Cole: --Your Honor, I... I don't know that it hasn't.

I mean, I'm... I'm surprised in a sense to hear that claim because in brief period in which RFRA did apply to State prisons, there was an explosion of these demands.

And... and I would direct the Court to, I believe it's, 204, 210, 211, and 212 in the joint appendix to see some of the ways in which there's been this impact.

I'd also--

Justice Souter: I'll... I'll grant you that, but it seems to... I mean, Justice Ginsburg responded to that by saying that these things get sorted out.

At the beginning you get all sorts of loony claims.

As time goes by, you get fewer of them.

And... and if... if they weren't getting few of them, I would have expected the United States to make a different representation.

Mr. Cole: --Your Honor, I don't know that the fact that... that strict scrutiny might become... what that means, what that's going to require.

And arguably, this is a slightly different strict scrutiny than other strict scrutinies because of some of the legislative history, to the extent one... one wants to look at that.

And... and that's, I guess, the problem.

As we flesh that out, during that entire time, we're saying it's all right to burden other inmates in prisons.

It's all right to burden prison officials.

It's all right for Congress not to burden Federal prison officials, but for Congress to burden State prison officials with this new set of obligations.

Justice Souter: Well, I don't know what that's got to... you know, you may or may not have an argument there, but I don't know what it's got to do with the meaning of the Establishment Clause.

Mr. Cole: Well, Your Honor, the--

Justice Scalia: And they're not burdening you anyway... anyway.

Just don't take the money.

Mr. Cole: --Well--

Justice Scalia: It comes with the money.

Mr. Cole: --I'm--

Justice Scalia: You don't want the burden?

Don't take the money.

I mean, they... they do that all the time.

Mr. Cole: --I'm not sure I agree with that, Your Honor, for... for a couple of reasons.

First, this also purports to be Commerce Clause legislation, in which case it would be a mandate upon the States whether--

Justice Scalia: What we have before us in this case is... is a case covered by the... the Spending Clause.

So we don't have to grapple with the Commerce Clause for now.

Mr. Cole: --But... but secondly, Your Honor, with respect to the Spending Clause issue, this Court has said in Dole that there needs to be relatedness between the spending, that if there's going to be strings attached, they actually have to be attached to the Federal money in some meaningful way.

And here, Congress is relying on spending, most of which has absolutely nothing to do--

Chief Justice Rehnquist: But the Sixth Circuit didn't pass on the Spending... Spending Clause issue.

Mr. Cole: --No, they did not, Your Honor, but we--

Chief Justice Rehnquist: And it isn't raised by your opponent's petition.

Mr. Cole: --That's... that's true, Your Honor, but it is available to the Court as an alternate ground of affirmance of... of the decision below.

Chief Justice Rehnquist: Yes, if we're looking for that.

Mr. Cole: Well, Your Honor--

Justice Ginsburg: There was one question brought up about Ohio's own practice.

But you... you say we have no obligation to relieve burdens.

If we did, we would violate the Establishment Clause.

The point was made that Ohio pays for chaplains, but it doesn't pay for, say, psychologists to come in for agnostics.

So aren't you right there violating the Establishment Clause on your own theory?

Mr. Cole: --I don't believe so, Your Honor, because our theory isn't that anytime you go beyond what free exercise requires, you're immediately into an Establishment Clause violation.

We recognize that there is a play in the joints.

And providing chaplains, given the... the rich history and tradition of doing so in prisons, seems to fall very comfortably within that play in the joints.

The question is when have we gone too far.

When has our accommodation slid over, as the dissent put it in Texas Monthly, into a... or an impermissible incentive to practice religion?

Justice Stevens: May I ask this question, Mr. Cole?

I am troubled also, as you point out, about the least restrictive language in the statute.

But as I try and apply it to this particular case, weren't most of the allegations that the petitioners made is that they were treated differently from other mainstream religions and that the accommodation would have been, well, treat them the same, which would have been the least restrictive alternative?

It wouldn't have created all the problems you describe.

And they say they don't... can't have group meetings.

They... if they were treated exactly the same, would that... that would satisfy the least restrictive alternative part of the statute, wouldn't it?

And why would that be such a burden?

Mr. Cole: Your Honor, first, I'm not sure that their claim is that, oh, we're being treated differently and worse.

Their claim was we want to get together for congregate religious services or, in Mr. Hampton's case... he was a Wicca... he wanted certain objects, including a quartz crystal that he would be able to keep in his cell.

Justice Stevens: Don't mainstream religion adherents have certain objects they'd like to keep in their cell?

Mr. Cole: They... they may well, Your Honor, and... and the point is in each of those cases, prison officials look at the object and say what's the potential for harm here.

Should we let them have it in their cell?

There's a... there's a practice in Ohio prisons of--

Justice Stevens: The mainstream person, if there's a potential for harm, they wouldn't let them keep it in the... in the cell, would they?

Mr. Cole: --That's right, Your Honor.

Justice Stevens: And in other words, is it really... although the language in the statute seems to go farther, is there anything really at stake here beyond saying treat us the same as you treat mainstream... members of mainstream religions?

Mr. Cole: Absolutely, Your Honor.

Absolutely.

Justice Stevens: And what is the best example of that?

Mr. Cole: There's a... a request for a prisoner who wants the grooming regulations changed with respect to him.

He's a prisoner who's got a history of contraband violations.

He's involved in a... in a prison betting pool and carries... tries to carry betting slips and secret them on his person.

And so if he could violate the grooming regulations, the concern is he might use that to hide contraband.

There are prisoners that want to wear their hair in a certain way to signify gang affiliation, and instead, they claim, well, I need this for religious purposes, but what's really going on is they want to signify gang affiliation.

Justice Kennedy: If you want us to say that--

Justice Stevens: It would seem to me that would be a compelling interest to say you can't do that.

Mr. Cole: Your Honor, again, I'm... I'm sure there's a compelling interest.

The question is the least restrictive alternative.

Are we going to be able to meet every Federal judges' view of is this the least restrictive way we could go about achieving this compelling interest?

There's no doubt that prison security is going to be recognized as a compelling State interest, but the difficulty is the least restrictive alternative test.

Justice Kennedy: --Well, I... I suppose you're saying you want us to make the holding that... one of the holdings you'd be satisfied with is that while some accommodation is... is appropriate, this is extreme accommodation.

What's your best case for that?

I... I just can't remember a case in which we've tried to ask whether every form a request for accommodation has to be acknowledged.

Is... is this the only case that you've come across?

Mr. Cole: Frankly, Your Honor, other than RFRA, it's the only time Congress has gone this far.

And so to say that there's a lack of case law on this is more to suggest that there's been settled understandings that we can't go this far rather than--

Justice Kennedy: Well, I guess what I'm asking is what's the closest analogy you can--

Mr. Cole: --In our brief we... we looked at Lee v. Weisman in what the Court called subtle and indirect coercion to religion when it was merely standing for a... a invocation during graduation once a year.

And we contrast that with what's going on here and the constant pressure day after day, if you want this set of benefits, get religion.

Justice Breyer: What about the American Indian who didn't... or was it... I think it was an American Indian.

But... who didn't want to be known... it was a woman and she didn't want to known as a number.

She wanted a name.

That was a religious basis.

And Social Security... I think the Court hold... didn't have to give her that.

Mr. Cole: That's correct, Your Honor.

Justice Breyer: So that to me stood for the proposition that administrative considerations play an important role in deciding whether you've hit upon the least restrictive alternative.

And as long as that was the law, then you're okay.

And that was a Supreme Court case I think.

I may be misremembering.

Mr. Cole: Again, Your Honor, it's not that we couldn't potentially win these cases under least restrictive alternative.

The question is by changing the standard to that, changing the standard to one in which these prison officials... I mean, Congress is, in a sense, asking Federal judges to sit as overseers of religious life in the prisons across the 50 States.

And given what this Court said in Turner, given what this Court said in O'Lone about the intractable problems that prison officials face, it just seems an inappropriate task and one that, if motivated with the desire of increasing religiosity in prison, seems to cross the Establishment--

Justice Kennedy: --You're asking us--

Justice Scalia: Why is it... why is it worse for... for judges to be overseers of religious life in prison than it is for wardens to be overseers of religious life in prison?

I mean, somebody has to say what the lines are, what will... what will be accommodated and what won't.

Mr. Cole: --Right, and it's--

Justice Scalia: And that someone is going to be a government official.

I have no reason to believe that wardens are... are better at it than judges except with respect to, you know, security and administrative convenience, which we will honor under this statute.

Mr. Cole: --Except, Your Honor, this Court noted in Turner, I believe it was, that the need for judicial deference is particularly strong when you're dealing with situations that create ripple effects in prison.

And it's difficult for Federal judges to know.

They don't have prison management experience.

They don't have 20 years on the ground like most prison wardens do to say this... this accommodation will work and this one won't.

Justice Scalia: And I think that means that they will give great deference to what the... what the wardens of the prisons say is a compelling interest of... of the penal system.

Mr. Cole: If they will, it's not in the face of the statute, Your Honor.

I mean, it's not in the face of the statute.

It says compelling State interest and least restrictive alternative.

I would just like to note--

Justice Ginsburg: Can you... can you give me an example?

Because most of the things I think of is either you can have kosher food or you cannot.

Either you can wear a yarmulke or you're not.

There's not other... another alternative.

Most of these things are yes and no.

What is the case where, well, you can't have this but we'll give you something lesser?

Mr. Cole: --Well, I believe Mr. Clement noted that... that there was a case that held that, okay, you can't wear the medallion on the outside of your shirt, you can wear it on the inside of your shirt.

So that would be a less restrictive alternative for not allowing you to use the medallion, I guess, as a gang identifier.

Now, it doesn't really deal with the problem that as soon as the guard is not looking, again it can be pulled outside the shirt and can be used as a gang identifier.

Justice Ginsburg: Well, maybe if the warden says that, the court would say, fine, you don't have to accommodate.

Mr. Cole: Maybe, Your Honor, but... but the question is, is it permissible for Congress to create incentives for prisoners to say, yes, I'm religious because I want these other benefits?

Can Congress really say, boy, we'd like you to be religious, and the way we're going to provide that incentive is by giving you a better shot at getting out from the rules in prison?

It's not a guaranteed shot from getting out, but it's a better shot at getting out from the rules that apply to everybody else in prison and to get that, you have to become religious.

Justice Souter: Better shot than... better shot than what?

Better shot than the... than the Free Exercise Clause alone would allow?

Mr. Cole: Better shot than--

Justice Souter: And aren't you arguing that in the prison context, once you get beyond the free exercise line, you are into establishment?

Mr. Cole: --Well, and Your Honor, I was not careful there.

I should say much better shot.

I mean, again, it's this point that--

Justice Souter: Okay.

But how do we administer?

How does anyone administer that... that kind of a test?

Mr. Cole: --I--

Justice Souter: It can... it can be better but not much better?

Mr. Cole: --I think by comparing to what's gone before.

In fact, the Court has adopted a version of that approach already.

In Caldor, the Court said if it's unqualified and imposes a burden on others, that's going to violate the Establishment Clause.

I see my time is up, Your Honor.

Chief Justice Rehnquist: It is.

Thank you, Mr. Cole.

Mr. Cole: Thank you.

Rebuttal of Paul D. Clement

Chief Justice Rehnquist: Mr. Clement, you have 4 minutes remaining.

Mr. Clement: Thank you, Mr. Chief Justice.

Just a few points in rebuttal.

First of all, I'd like to note the anomaly that much of the argument of General Cole would be an argument for why the State constitutional provision that gives higher protection for freedom of conscience in Ohio is itself unconstitutional.

Justice O'Connor: Why don't you address the ways in which this act goes beyond our former free exercise--

Mr. Clement: I'd be happy to do that, Justice O'Connor.

I think that there's been an exaggeration of how far it goes beyond.

Now, I want to be clear about one thing, which is this Court, even before Smith and O'Lone, said that there was going to be deference to prison officials and a Turner standard would apply.

So to the extent that there's a little less deference here than under the O'Lone standard, that is a modification.

The centrality requirement, though, is not something that can be charged to RLUIPA or to RFRA because even before the Smith case, this Court in Ling and Hernandez was moving away from centrality and--

Justice Scalia: Also not compelled... not compelled... by religion.

You just say, you know, I... I want to give up everything except candy for Lent, and the... the prison has to accommodate you.

Right?

Mr. Clement: --Well, Justice Scalia--

Justice Scalia: It's not compelled.

I... you know, I could do something else.

But I had thought that our prior religion cases did... did, indeed, require some religious compulsion than just I... you know, I'd like to do this as a religious matter.

Mr. Clement: --Justice Scalia, I don't think this Court has ever in its accommodations cases held that the government can only accommodate those things that are central.

I don't know for sure, but I rather doubt that employing co-religionists in a gymnasium is central to the practice of any faith.

Yet, in Amos, this Court upheld that as a valid accommodation.

And I do think the centrality requirement--

Chief Justice Rehnquist: --the LDS.

Mr. Clement: --What's that?

Chief Justice Rehnquist: I said you may underestimate the LDS.

[Laughter]

Mr. Clement: I may, Mr. Chief Justice.

But again... but... but to the extent I do, I think those are questions that are best to be kept out of the courts, which is why even before Smith this Court moved away from centrality.

It's why even Justice O'Connor, who otherwise was in disagreement in Smith, also agreed that we should get rid of the centrality requirement.

And if you look at some of the cases that are actually decided under RLUIPA, the cases involve things like Muslim prayer oil and they... the cases... the Seventh Circuit, for example, allows it.

Now, we don't want the courts getting into--

Justice Scalia: I guess you're right.

I think I was thinking of free exercise cases rather than establishment cases.

Mr. Clement: --Well, I... I think that's right, and I think there is not that centrality requirement for accommodations.

I do want to make the point, though, that... that Ohio already, under its State constitution, has this heightened review with a lot of these, you know, least restrictive alternative tests and the like.

Nobody thinks Ohio's constitution violates the Federal Constitution.

That's true even though Ohio applies it in the prison context, at least when it's a claim by a guard rather than an inmate.

That... those are the facts of Humphrey against Lane.

It's also true that many of Ohio's arguments would suggest their own accommodations of some religions give too much of an incentive for religious exercise and the like.

And I think that's a defect as well.

I don't think... and I agree with Justice Souter in this regard... that narrower accommodations actually raise more constitutional problems than broader accommodations.

I think that this Court, for example, in Caldor dealt with an accommodation that was at a fairly high level of generality, but yet this Court said and Justice O'Connor emphasized in her concurrence, well, that's a preference for Sabbatarian religions.

And I think you avoid that with this kind of across-the-board test.

Justice Kennedy, you made a point about whether this is extreme in the degree that it accommodates religion, but it's certainly no more extreme than the... than the laws and constitutions of 26 States, which across the board apply this heightened scrutiny to all manner of State actions.

So in that sense, the fact that it accommodates religion kind of wholesale with a broader standard, as opposed to retail, I don't think is a constitutional defect.

The last point I wanted to make is on the racist literature hypothetical, and I think it is in large measure just a hypothetical.

As footnote 2 in our brief points out, prisons have been generally successful in keeping racist literature out even when it's supported as a claim for religious-based racist literature.

The only cases that I've come across where that hasn't prevailed is when the... the prison's own policy had exceptions in it that made very little sense.

And in this case, for example, if you look at joint appendix page 118, there's an allegation that with... with one piece of literature that was described as racist, that some prisoners were allowed to have it while others were not allowed to have that same kind of literature.

Now, I don't know whether those claims are in fact true, but that's the kind of claim that should be able to go forward in a case like this.

With all respect, I think the Sixth Circuit here made a mistake, ignored this Court's precedents, and should be reversed.

Chief Justice Rehnquist: Thank you, Mr. Clement.

The case is submitted.

Attribution:

The Oyez Project

Featured:

McCreary County v. ACLU - Oral Argument

Fri, 09 Jan 2009 14:49:00 +0000

Case:

McCreary County v. ACLU

Media File:

03-1693_20050302-argument.mp3

Related Transcript:

transcript.xml

Clips:

Scalia Says it is Idiotic

Transcript:

Argument of Mathew D. Staver

Justice Stevens: And we will now hear argument in McCreary County against the ACLU.

Mr. Staver?

Mr. Staver: Justice Stevens and may it please the Court.

Before this Court is a setting of law in a courthouse and a display on law that contains the universally recognized symbol of law.

Despite the fact that the deck law occupies only one tenth of this otherwise secular display, the Sixth Circuit struck it down.

The Court focused solely on the religious aspect of the Ten Commandments and that's aired by ignoring the overall context.

The Ten Commandments is unlike most any other acknowledgment.

It is in a category essentially all by itself.

It is thematic in common places in courthouses while Nativity scenes and menorahs occur occasionally and often gratuitously on public property.

The Ten Commandments occurs quite frequently and has for more than a century in courthouses all over this nation.

It is associated with courthouses for a clear historic reason, because the Ten Commandments has played an influential role in American law and government and our system of law in this country.

The context in this case is clearly important.

Yet the Sixth Circuit--

Justice Souter: May I ask you there basically to comment on the point that Justice Scalia made in the course of the last argument?

The context, as we know, has changed pretty radically in the course of litigation over this and it started out with just the Ten Commandments alone and then version 2, the Ten Commandments had certain... were surrounded by certain quotations of religious content from other texts.

And finally, as I guess literally is true with a new lawyer and more litigation, we've gotten to the present context.

Isn't the problem that you have to face, as I've said before, what Justice Scalia raised before, everybody knows what's going on.

Everybody knows that the present context is simply litigation dressing and that the object for what is going on is the object that was revealed in the first place.

What is your response to that?

Mr. Staver: --Several.

The display in this case has three different phases.

First it was the stand-alone Ten Commandments.

They were sued.

They could have defended that but they chose instead to switch rather than fight because they wanted to try to comply with this Court's establishment clause jurisprudence, to try to figure out how to be able to display this particular document.

They stepped, however, on a land mine admittedly with this second display.

Justice Souter: Well, they created the land mine basically.

I mean--

Mr. Staver: They were trying to do the best that they could, trying to follow this ever bending establishment clause jurisprudence especially in the area of displays.

Remember this was back in 1999.

At that time, there were less than a handful of reported decisions ever in this country on the Ten Commandments.

The first was in 1973, Stone was in 1980 and there were a couple of others.

There are only 30 reported cases in the country or so and 23 of those happened from 1999 to the present so they didn't have really any guidance.

They were trying to follow Lynch and Allegheny as best as they could but these are governmental officials.

They're not jurists schooled in the law.

And admittedly they made a mistake.

But what they have now is the foundations display and as the District Court recognized, it is fundamentally different than any previous display.

Like this Court's decision in the Sunday law cases, even though it may have started off for a religious purpose, the Sunday laws were continued to be retained for secular reasons.

In this case--

Justice Kennedy: Are you saying that the purpose is neutral or that the purpose doesn't matter?

Mr. Staver: --We're saying that in this case, the purpose is about the display of law.

We also have an argument later on that this Court should reconsider the purpose prong in generally as it relates to the Lemon test.

Justice Souter: --Okay, but if we still have a purpose inquiry, what you say of course is true.

The current display includes the display of a lot of legal documents.

But is there any reason for anyone to believe that that display of legal documents or anything else would be there for any other purpose than the display of the Ten Commandments, including the religious, the overtly theistic part of the text of the Ten Commandments?

Mr. Staver: Yes, Your Honor.

The District Court actually recognized that one of the omni intended effects of the history is to educate everyone of the difference between an acknowledgment and an establishment.

And even if they had a religious purpose under the second display, that religious purpose has been buried and has been abandoned.

They voluntarily accepted the--

Justice Souter: You're not abandoning the position that you have a right to make this kind of religious display, are you?

Mr. Staver: --No, we're not.

Justice Souter: Okay.

Mr. Staver: And that's why we said that they could have defended the individual first display which was the Ten Commandments alone, in part because it is the uniquely recognized historic symbol of law and is commonplace and thematic in the courthouse.

They could have defended when they were originally sued on that basis alone but instead they chose to modify the display.

And when they modified the display, it had excerpted sections around it.

Justice Souter: But is there... I guess... I don't want to tie you up too long but I mean given the history, isn't it still the case that there is no serious reason to believe that there is any object here other than the display of the Ten Commandments including the overtly theistic text and the rest of this is basically enabling context which does not affect the objective, the objective being the Ten Commandments and the religious text?

Mr. Staver: Your Honor, they must be able to change their misstep, if it was a misstep, that they had.

Otherwise, that past taint would be superimposed on the foundation's display forever and the question would be--

Justice Souter: Well, not forever but for now.

This isn't a case in which they came up with the Ten Commandments display, it got enjoined and 10 years later somebody comes along and says, let's have a display of important documents in the history of law.

This in fact is a continuous process and it is a continuous process within the context of litigation about the constitutionality of the display.

It's not a... the implication is not that you can never have a different display but that there is no reason to believe that the intent of this display has changed as the context has changed.

What is your response to that?

Mr. Staver: --The intent has certainly broadened in this case and there is clearly no evidence in this record that this foundations display is solely purposed or intended to be a religious display.

In fact, even the respondents of amici that wrote against us said that on the face of this display, it appears secular in nature.

It does.

In fact, the foundations display not only has numerous other documents of which the Ten Commandments is only one tenth of these many other document but it also has a foundations document that says what the purpose is about.

There is only two places that talk about the purpose on the foundations display.

On the document itself, which says it's a display about some documents that influenced American law and government, and the undisputed testimony that these are documents that reflect documents that have influenced American law and government.

That's the record before this Court on the foundations display and that is fundamentally different--

Justice Breyer: Suppose we go back to the first display.

If all that was there was the Ten Commandments, now, in your opinion, was that constitutional?

Mr. Staver: --That is arguably constitutional--

Justice O'Connor: Do we take it along with the resolution of the counties?

Do we look at everything?

Mr. Staver: --Your Honor, there was no resolution, Justice O'Connor, for the first display.

It just went up.

Justice Breyer: So just that first display, what was the purpose of that first one?

Mr. Staver: The purpose of that first one is like it is in many courthouses around the country.

Both courthouses have numerous documents of his historical nature along the walls, 284 just in the curia alone.

And in Pulaski, many, many documents, when they celebrated their 200th anniversary in 1999.

So that was one of many documents that's there and that was a document of the Ten Commandments that was meant to show the historic nature of the Ten Commandments, how it has in fact influenced American law and government in the appropriate setting of a courthouse.

Justice Breyer: The original one?

Mr. Staver: The original one.

Justice Breyer: Was there anything there that said we're interested in history and what we're not interested in is having this on the wall as... to encourage people to study the Bible and to encourage them to study religion and to understand that in their lives, religion should be important and this very solemn secular setting.

Nonetheless, religion is important.

Was there anything other than the document itself?

Mr. Staver: No, it was just the document itself in a frame on a wall amongst almost 300 other documents.

Justice Scalia: What if its purpose were to demonstrate... and I quote from one of our earlier opinions... that we are a religious people whose institutions presuppose a Supreme Being.

What if that were its purpose?

Would that have made it bad?

Mr. Staver: I don't believe so, Justice Scalia, because that in fact is an acknowledgement that is part of our history; like in Marsh versus Chambers.

That's why this Court has authorized prayers before legislative sessions or suggested that the national motto is constitutional because indeed we are a religious people as this Court has said more than five times.

We are a religious people.

Our institutions do presuppose the existence of a Supreme Being.

Justice Kennedy: And is it your position that no real harm is inflicted on people who do not agree with that message?

Mr. Staver: That's correct, Your Honor.

Justice Kennedy, it would not inflict any harm because in this case, it's a passive display in a courthouse in a hallway and you could simply walk past that and avert your eyes once you see this.

It inflicts no harm, it does not--

Justice Ginsburg: Mr. Staver, what about all the distinctions that have been made between messages that are brief or I think the expression has been minimal or minimum in some of our cases, like in God we Trust, like God save the United States and this Honorable Court, like under God, and a document that is about worshipping the Lord, at least as many words devoted to that topic.

So it's not a brief reference.

It's a powerful statement of the covenants that the Lord is making with his people.

Mr. Staver: --Justice Ginsburg, the Ten Commandments is a unique symbol in the area of acknowledgment because of its historic role in influencing our law and government.

It is displayed in this context for that unique role.

It does have some statements in there about God but, frankly, very few when you look at the overall context.

Justice Ginsburg: Have you read the first four commandments and could you say that?

Mr. Staver: Sure.

And those are definitely and decidedly religious.

There is no question that the Ten Commandments is a religious document.

There is also no question that it has influenced our American law.

Justice Scalia: Do you think the Ten Commandments are longer than the legislative prayers you've heard at the beginning of congressional sessions?

Mr. Staver: No, Justice Scalia.

I think they're quite shorter.

Justice Breyer: I don't know how much help I can get or not but I was thinking in terms of the involvement of the government, is the government involved in religion when it posts the Ten Commandments alone?

Yes, of course it is.

Now, there could be a purpose to it, that they want to just show the history of law but it's all by itself and there is a lot more history than that and context may matter a lot.

Not everybody will go with the Ten Commandments just by itself there and say, well, gee, this seems to go too far.

This is going too far.

Why?

Because it isn't really related to history, it's the only thing up there, it's involvement in religion, so forth.

Now, suppose I go down that track because what I'm really looking for is a key as to what's too far and what's not.

But for present purposes, let's assume it's too far.

Now, once they've gone too far there, the next thing that happens is they keep changing it but they change it pursuant to the resolution and it seems as if in context, all they've tried to do is to surround what went too far with a number of other things that would somehow make it legal.

Now, if it was wrong to begin with, is it wrong to end with?

Mr. Staver: No, Justice Breyer, it is not wrong to end with any more than it would be wrong to begin with the Sunday laws based upon the Sabbath commandment which was a commandment about worship and the end with the secular reason for keeping those particular laws as this Court has recognized in McGowan.

And in this case, even if they started off with a decidedly and only religious purpose, which we contend they did not, they did not end with one and they've got to, as governmental officials, be able to adjust their missteps whenever they step on a constitutional land mine that is sometimes blurry and confusing to them.

That's what they tried to do in this case, the best efforts to try to follow this Court's decision when there was really no specific guidelines for them to be guiding their direction.

The Ten Commandments that Justice Stevens, you had mentioned about the versions, the versions I don't believe, with all due respect, are relevant in this case or any other case regarding the Ten Commandments because if that were the case, you wouldn't be able to teach the Bible in an appropriate context because there are so many different versions and yet Stone and Schempp has indicated that you indeed can teach even the Biblical text with all of its multiple versions.

Justice Souter: But I assume if you were running a course in a school about the biblical text, you would explain the differences.

You would indicate the difference between the Jewish, the Roman, the Protestant, the Lutheran and so on and you're not doing that here.

I would have thought your answer might be, well, if that really made a difference, we could have separate versions.

But it's not comparable to school teaching.

Justice Stevens: Justice Souter, in fact it would be somewhat comparable because if you're teaching general biblical text, you wouldn't have all the different versions lined out.

Justice Souter: Would you think it was appropriate in a public school course that was otherwise a bona fide course to teach the day on exodus, to teach about simply the Protestant version of the Ten Commandments?

Mr. Staver: We would believe that, in fact, in this case, I don't even think they thought about whether there were different versions but we certainly believe that they could have the text there and talk about the Ten Commandments.

Justice Souter: In a public school, wouldn't it be required, at least for intellectual reasons if not the reasons of the establishment clause to say, well, graven images are dealt with differently in the standard Roman translation and the preamble sections of what may and may not be regarded as commandment number 1 are different in the Christian versus Jewish and so on.

Wouldn't that be an intellectually responsible requirement?

Mr. Staver: That's in a school context which this is a courthouse context.

Justice Souter: Exactly.

I thought you were equating the two together.

Mr. Staver: Not one to one but I think the version issue, if there is a version that flunks the test, it would be this Court's south frieze.

It's actually in Hebrew and it speaks only to Jewish people.

But yet that's not sectarian such that it violates the establishment clause.

That's the acknowledgment as opposed to an establishment.

Justice Stevens, if you would like, I would like to reserve the remainder of my time.

Justice Stevens: You certainly may do so.

Mr. Clement, you're welcome back for a second time.

Argument of Paul D. Clement

Mr. Clement: Thank you, Justice Stevens, and may it please the Court.

The display of historical documents here, like the display in the Lynch against Donnelly case of the creche, may include a religious item without running afoul of the establishment clause.

As in the--

Justice O'Connor: Do we have to consider the history of the display at all?

Mr. Clement: --Justice O'Connor, we would urge you not to consider the history of the display.

You in your concurring opinion in the Pinette case made the point that in the context of accommodations, the inquiry into religious purpose doesn't make a lot of sense and you urged the Court to drop it in that context.

I think so too in the acknowledgment context.

Certainly if you have a situation where you don't have... I think in the acknowledgment context as well, a focus on purpose may not be that productive.

But I would like to talk about the purpose--

Justice Scalia: I don't know what you mean by the acknowledgment context.

Mr. Clement: --I think this Court has said that you can accommodate religions.

They've also said that you can acknowledge the role that religion has played in our society and I think in both contexts, a focus on purpose is probably not a prudent exercise of judicial resources.

But I would like to talk about the purpose here because I think what you have here is a display of a document alone in the first instance that certainly was at least defensible and probably constitutional, yet the courts below got off on the wrong foot by saying that the first display was open defiance of this Court's decision in Stone against Graham and I think this Court's cases themselves suggest that the contextual differences between the schoolhouse and the courtroom are enough to make the display, at least the first display, not in open defiance.

Now there was the second display and we are not here to defend the second display but that was the display that was in reaction to the lawsuit filed against the first display.

Now, I don't know if that second display was the product of bad legal advice or simply frustration at the first lawsuit being filed but I don't think it should make a constitutional difference.

In the Lynch against Donnelly case, Mayor Lynch, after the ACLU filed a lawsuit against him, had a rally at the site of the creche, a press conference, where he publicly vowed to fight to keep Christ in Christmas and then he led city workers in carols and said they should sing another one that apparently bothers people.

Yet despite that adverse reaction to the litigation being filed against the city of Pawtucket, this Court upheld the display and although the dissent did focus on the mayor's crusade to keep Christ in Christmas, the majority and the concurring opinions did not.

And I think that is the proper mode of analysis.

Now, the second point I think is should these counties be faulted for trying to bring their practices in compliance with the Constitution?

And I think the answer there is clearly not.

And I was going to point this Court to the Marsh case that's been talked about quite a bit.

One of the things that as Professor Chemerinsky said about the Marsh case that this Court emphasized in that case itself and in subsequent cases is the fact that the prayers there were non-sectarian in the sense that they did not directly invoke, say, Christ.

But that actually is something of a change that took place after the litigation began.

Prior to the litigation, there were explicit references to Christ as Justice Stevens pointed out in footnote 2 of his dissent in that case.

But the state of Nebraska, after they had a lawsuit, decided let's make this an easier case for the Court, not a harder case, and they modified their conduct.

Justice Souter: Okay, but at the end of the day in Marsh, there wasn't any question that what they were doing was praying.

And here it seems to me that the change that you're arguing for as significant is only significant unless it is a change in the essential activity because there is no law and it would be crazy law from this Court that said you can engage in religious endorsement, promotions, et cetera, so long as you hide the ball well enough.

What this Court basically has said is you can engage in secular objectives that incidentally involve religious figures or references, e.g., Moses up there.

What you started with in this case or what the county started with was a pretty religious-looking exercise and the question is, did they go from a totally religious exercise to a secular exercise or did they go from an obviously religious exercise to an obscured religious exercise?

And therefore, you can't make context a mere change in physical context dispositive because it ignores that distinction.

And that distinction I think is what is driving or what is going to drive possibly in my mind the resolution of this case.

What do you say to that?

Mr. Clement: Justice Souter, I have two points in response.

First of all, what I think would be a crazy way of having a jurisprudence is for the Court to say that this display is a foundation to the law document, it's perfectly constitutional in every other county courthouse in Kentucky except for McCreary County and Pulaski County because of their prior conduct.

The second point that I think is important in this context is that I think this Court's establishment clause jurisprudence is already difficult enough to apply without creating the First Amendment equivalent of covered jurisdictions under section 5 of the Voting Rights Act.

Justice Stevens: Basically, and I think I understand you, you're saying, and I think you said it earlier, drop the intent clause and basically have a... try to move toward an objective criterion saying there are some ways you can display religious things and some ways perhaps that you can't and try to develop that kind of objective jurisprudence as distinct from an intent jurisprudence.

That's your point, isn't it?

Mr. Clement: That would be my point, Justice Souter, but I also think independent of that point, it is also not a particular productive jurisprudence to really treat municipalities differently because the mayor in one case may have started with the creche and decided to add the wishing well or in the other case started with the wishing well and added the creche.

I don't think it makes any sense that if they end up in the same place, the constitutional rules should be the same.

Justice Ginsburg: Mr. Clement, you placed heavy reliance on Marsh, which was prayer and it was undisguised and it was permitted as it has been since the beginning of our nation.

Would it be equally compatible with the establishment clause if this Court opened its daily sessions with prayer?

Mr. Clement: Justice Ginsburg, I'm not sure that I could understand the jurisprudence that said this Court could not open its sessions with a prayer but the Capitol can.

Now, if there was any difference drawn at all, I would assume it would be a difference based on history.

Justice Scalia: I'm not sure we don't do it.

Mr. Clement: You know, it depends on how much content one wants to give--

Justice Scalia: I don't know who we're addressing when we say God save the United States and this Honorable Court.

They're not talking to me.

Justice Ginsburg: The kind of prayer that is used to open the legislative sessions which this Court has distinguished from in God we trust, God save the United States and this Honorable Court.

Mr. Clement: And as I said, Justice Ginsburg, I think if there were a difference in principle, it would have to be a difference based on history.

But I don't think there is... in this context, I think it is fair to say--

Justice Ginsburg: I'm asking you what your view is of the compatibility of every federal Court in the country having over the bench a replica of the Ten Commandments and opening each session with prayer.

Mr. Clement: --Justice Ginsburg, I suppose if the federal courts decided to do that, we would probably try to defend them on establishment clause grounds.

I don't think, though, that... I think that would obviously be a much tougher case than the posting of the Ten Commandments in the outer hallway along with a variety of other documents which I take it to be the first case here.

And then the final display that the Court has before it is actually the Ten Commandments in the context of the other secular historical documents.

And I think that kind of display clearly is constitutional for the reasons that the display was constitutional in the Lynch case.

Justice O'Connor: Do you think we have to amend the Lemon test to reach your approach?

Mr. Clement: Well, Justice O'Connor, this Court on a variety of occasions has chosen to simply put Lemon to one side as opposed to overtly amending it.

Justice O'Connor: Do you think, then, we have to either put it aside or amend it?

Mr. Clement: No, I don't, Justice O'Connor.

Justice O'Connor: To decide this case?

Mr. Clement: No, I don't.

I think it would be prudent, as I suggested at the outset, to make not necessarily a full amendment and eliminate the first purpose prong of Lemon but at least in the acknowledgment context as in the accommodation context we're not going to focus on that.

But independent of that, I think many of these Court's cases that were decided even under Lemon acknowledge the principles that municipalities should be rewarded, not punished, for trying to change their conduct to try to get things right.

In Abbington against Schempp, which I think in many respects is a precursor to Lemon because it talked at least about the purpose and effects test and I gather that's about all that's left of Lemon.

In that case, this Court held out the promise that it might be permissible for the government to have some use of the Bible in school.

Now, when it did that, it didn't except out Abbington township and said, but not for you, Abbington township, because you violated the purpose prong.

The Sixth Circuit here has adopted a rule that's essentially once mistaken, always condemned and we don't think that has any proper place in this Court's establishment clause jurisprudence.

Justice Stevens: Thank you, Mr. Clement.

Mr. Friedman?

Argument of David A. Friedman

Mr. Friedman: Justice Stevens and may it please the Court, three times in the course of a year, McCreary and Pulaski county posted Ten Commandments displays.

They variously describe the Ten Commandments as the precedent legal code of Kentucky, the central historic legal document of the State and, finally, as the moral background of the Declaration of Independence and the foundation of our legal system.

In the course of the litigation, they announced that under current law, they announced to the court that uncurrent law, America is a Christian nation and they acknowledge that the purpose of their second display was to demonstrate America's Christian heritage.

In this context, it is our position that the current courthouse display reveals both a purpose and an effect to endorse religion.

This Court has repeatedly and most recently in the Santa Fe case made clear that it is necessary to look at the content, the context and the history of a display in order to gauge whether or not there is a true secular purpose or whether or not an asserted secular purpose is a sham.

We submit here that on this record, the District Court and particularly in the context of an appeal from a preliminary injunction, which we have here, that the District Court had ample evidence from which it could conclude that the asserted secular purpose of McCreary and Pulaski counties was indeed a sham.

The counties announced their purpose not only in the content of the display itself but in the resolution that the counties enacted, the identical resolutions that the counties enacted within weeks after the filing of this lawsuit.

And in that resolution, the counties make clear that they relied on and cited approvingly the Kentucky legislature's reference to Jesus Christ as the prince of ethics.

They made clear that they supported the fight of Alabama Supreme Court justice Roy Moore against the ACLU.

They made absolutely clear in their legal papers that they deemed this to be a Christian nation under current law and they made clear that they absolutely intended and believed they had the right to display the Ten Commandments.

They did so not in a display of history.

They asserted and they intended to do so because of the religious nature of the Ten Commandments.

There can be no doubt that the Ten Commandments portrays a religious point of view and is profoundly religious.

The Court said so in Stone.

There is no serious question about that.

The question then here is whether or not the counties, in their current display, have done anything to sufficiently neutralize the endorsing message that is contained in this record.

And we submit it has not done so.

It now announces that the Ten Commandments are the foundation of our legal system, not just that religion is but that the Ten Commandments, a particular religious code, the word of God, it asserts is the foundation of our legal system.

It asserts that the Ten Commandments, the revealed Word of God, provides the moral background of the Declaration of Independence.

We think it clear that the content of the Ten Commandments and the content of the Declaration of Independence deal with substantially different topics.

Justice Kennedy: Suppose you had a county 100 miles away or a state, a different state, and the same display was put on and the recitation was... and it was a sincere recitation, that the government simply wanted to recognize that the 10 Commandments has played an important role in the civic life of our people.

Then you have... they're each up for five years and five years later, some school kids wander by one and they wander by the other.

In your view, from what you're telling me, the Commandments are permitted in one location and not the other?

I mean, that's the necessary purport of your argument.

You may not think that either of them are valid but on this prong of the argument, it seems to me that to differentiate, I just don't understand that.

Mr. Friedman: I think to an extent there is a differentiation because this Court has made clear that any assessment must depend on context.

There is no fixed per se rule but rather, the context one must look at both the purpose and the effect.

In gauging the purpose, one looks at both the litigation history, the social facts, the content and any changes.

Here the District Court had not only the display itself but it had the announced purpose of the county.

It therefore was in a unique position to gauge the purpose of the... the true purpose of these counties.

Moreover, it was in a unique position to gauge the effects that the reasonable observer in these small rural Kentucky counties, the reasonable observer's assessment of this particular display.

And the Court... McCreary County is a county with only 17,000 people.

Whitley City, the county seat, which is not even incorporated, has 1,100 people.

The District Court from its chambers in London, Kentucky was well situated to gauge whether or not the reasonable observer, knowing the litigation history of this case and knowing the changes in the forum and the context of this display, would perceive this to be a neutral recitation of history or simply the third in a series of efforts by this county government to post the Ten Commandments because that is what it wanted to post.

Justice Breyer: Does that mean forever?

What I'm thinking... let me spell it out a second.

The key words in Stone would be that this was posted, the Ten Commandments, because it would lead to, in the circumstances, the students remeditate, venerate, perhaps, and obey.

In other words, their reaction to it would likely be a religious reaction.

Now, here if you saw it just by itself, perhaps one would be concerned with the intent or the effect of calling to the viewer's mind the sacred character of the law, which is fine for religious people to do but not necessarily fine for the State to do; and that leads them to venerate, perhaps to meditate, perhaps to consider the relationship in a religious way.

If that's the problem, that would exist here only because of the history or most likely because of the history.

And if that is the problem, that would dissipate over time because it is the smallness of the audience and their familiarity with the history that would likely produce the similar religious reaction to the display.

Now, what's your reaction?

Mr. Friedman: I think it's a question of degree and while over time the importance of the purpose may diminish, the purpose does not fully diminish and the effect does not change substantially.

It is a question of degree, it is a question of line drawing.

Here there is not an effort to incorporate the Ten Commandments into a neutral display or a neutral course of study such as a compare and contrast of ancient moral codes or a comparative religion course such as many of us have taken and schools clearly can offer.

It is not a neutral display of law givers like the frieze in this Court.

It asserts the primacy of the Ten Commandments.

It says the Ten Commandments are the moral background of the Declaration of Independence.

It doesn't say there is some commonality between the Ten Commandments and some American laws.

It talks not only about law.

It talks about our system of government.

It says the Ten Commandments, the revealed Word of God is the moral foundation of the Declaration of Independence.

That in itself is an endorsement of religion in this context and I don't think that can dissipate over time.

Justice Breyer: Why is it?

It may be true.

These pilgrims came for religious reasons.

If all this was... so you have a display of the history of the origin of the law in the United States, what would be wrong with saying, this is a historical account?

It's like teaching religion in the schools.

Of course it stemmed from the religious beliefs of those who came to the United States.

You don't mean it religiously.

You mean it historically.

Mr. Friedman: It's the difference between acknowledgment and endorsement.

Of course counties and other governments can acknowledge the role that religion played in history.

That is very different from acknowledging religion as a general matter and asserting that a specific code that is central to specific religions is the one... not only the one religious source but the one source, religious or moral, that provide... religious or secular that provides the moral background of the Declaration of Independence.

Justice Scalia: I don't think it stands for that.

As you heard, the code takes various forms for various religions.

And I think all it stands for is the proposition that the moral order is ordained by God.

That's all it stands for.

And to say that that's the basis of the Declaration of Independence and of our institutions is entirely realistic.

Mr. Friedman: What this display says--

Justice Scalia: I don't think they're really saying that the particular commandments of the Ten Commandments are the basis of the Declaration of Independence.

That's idiotic.

What the commandments stand for is the direction of human affairs by God.

That's what it stands for.

Mr. Friedman: --Whatever the merit of that statement, that is not what these counties have said.

What these counties have said in their resolutions is that the Ten Commandments are the precedent legal code of Kentucky and the central historic legal document of the state.

What they have said in this display itself, in the explanation of the display, that they are the moral background of the Declaration of Independence, to the exclusion of all others, in effect.

When you say the, it doesn't say one of.

It says it is the foundation of our legal system.

It doesn't say it had an influence on some of our laws.

It asserts the primacy, the actual text of this display asserts the primacy of the Ten Commandments.

Justice Scalia: If that's what it means, it's idiotic.

I don't think anybody is going to interpret it that way.

You can't get the Declaration of Independence out of the Ten Commandments.

Mr. Friedman: I would agree with that, Your Honor.

Justice Scalia: And I don't think that's how somebody would normally read it.

I think what they're saying is the principle of laws being ordained by God is the foundation of the laws of this state and the foundation of our legal system.

Justice O'Connor: How long is that resolution going to guide our view of the future displays or even the present one?

What if the membership of the board of supervisors is changed?

How long do we look to that particular resolution?

Mr. Friedman: I think, Your Honor, it's an element that the District Court in the first instance must accept and gauge in determining whether or not the announced secular purpose is indeed a true purpose or is a sham.

Where we're talking about a close time period, here three displays in less than a year by the same officials of the same county trying to post the same document, this case becomes very close to the Santa Fe independent school district case where it's a moving target in direct response to pending litigation as an effort to try to get the same end result and changing the operative facts just slightly in the hope that eventually it will be right.

Justice Souter: May I ask you a question on that point?

And I should know the answer.

It must be in the briefs but I don't remember.

I assume that they rescinded the resolution before version 3 of the display was put up, is that correct?

Mr. Friedman: That is not correct, Your Honor.

The resolution was enacted in early December 1999, a couple of weeks after the display.

It has never been rescinded.

Justice Souter: It is still on the books?

Mr. Friedman: It is still on the books.

A point is made in the reply brief, and it is accurate that it is is not a binding resolution, it encourages the county judge executive to post the Ten Commandments as part of a historic display.

It doesn't say post a display of documents and have a county judge choose to post the Ten Commandments.

The initial paragraph of the resolution makes clear that it encourages the county judge to post the Ten Commandments and then as part of a historic display.

The county judge did that.

The District Court enjoined that display.

The county appealed that injunction and then, after getting new lawyers, dropped its appeal.

Soon after that, the county posted a third display, again, the Ten Commandments with what it called historic documents, leaving aside how the Stars Spangled Banner or the national motto as a historic document.

What it did is wrap the Ten Commandments in the three or four secular documents that we all clearly acknowledge as the root of the American system of government.

It did so pursuant to the same resolution.

There has never been another resolution, it has not been rescinded.

The resolution is there.

It cites Jesus Christ as the prince of ethics, it cites legislative allusions to Jesus Christ.

I think the resolution, which is cited in the joint appendix of the docket number, makes it clear that the purpose of this county was to post the Ten Commandments and to do so because of the religious nature of the Ten Commandments because of the primacy in its view of the Ten Commandments.

That's what it focused on.

That's what this litigation history has revealed throughout and that's what the District Court found at least at the preliminary injunction stage, which is where we still are.

There has been no evidence taken in the case, no discovery taken in the case to suggest anything other than what the District Court found.

And on this record, I submit that there can be no conclusion other than that the purpose of the county in posting the series of displays was to post the Ten Commandments because of their religious nature and the effect on the reasonable observer who knew what was going on, who was there to see what was transpiring in this small county was clear to the District Court.

The District Court doesn't operate in a vacuum.

And this Court has made clear that courts cannot turn a blind eye to a sham secular purpose.

The District Court not only saw the displays, heard the arguments of counsel, saw the resolutions of the District Court, of the fiscal Court.

The fiscal Court is the legislative branch of government in Kentucky.

The District Court also was there in the community and could see both the public reaction, the letters to the editor, the keep the Ten Commandments signs on yards throughout the county.

Justice Stevens: Is all of that in the record?

Mr. Friedman: That is not in the record.

Justice Stevens: Then I don't think we should talk about it.

Mr. Friedman: The District Court was well situated to understand the social fact, historical record and arguments of both the lawyers and the parties and the statements of the parties.

Justice Stevens: Mr. Friedman, can you tell me where in the joint appendix the resolution appears?

Mr. Friedman: Joint Appendix page 1, number 5, and it's Exhibit 1 attached to it.

And that's for one of the counties.

The other one is... and these are the docket entries.

The document itself is not in the joint appendix.

And the other county is joint appendix page 28, number 6.

They're both Exhibit 1s attached to those documents.

Those documents are the county's motions to dismiss in the District Court.

Justice Breyer: It's not printed?

Mr. Friedman: It is not in the appendix itself, no.

The resolution is not in there.

The citation to it from the index is there.

Justice O'Connor: It is in the record which we have?

Mr. Friedman: It is in the record.

It was submitted in fact by the petitioners in this case.

They submitted the resolution in support of their arguments defending the second display, the display that surrounded the Ten Commandments with the religious text.

They made clear in that brief that they were asserting their right to display the Ten Commandments as part of their argument that the purpose was to demonstrate America's Christian heritage.

I submit that in that brief, in that resolution, in the repeated statements of the county officials and of their counsel, the District Court was well within its discretion to determine that the purpose here was religious, was not secular and that the effect, as viewed by the reasonable observer, was religious... was to endorse religion, not secular.

If there are additional questions, I would be happy to answer them.

Justice Stevens: The other question I have is assuming you didn't have any of this history and they started off with plan 3, would that have violated the establishment clause?

Mr. Friedman: Yes, Your Honor, I think it would.

It would be a closer question but in this context, what we have is the assertion that the Ten Commandments are the source, the moral background of the Declaration of Independence, the foundation of our legal system.

It is not incorporating the Ten Commandments as part of a neutral course of study.

It is not like having Moses along with 15 other or 15 law givers.

It is the assertion of the primacy of the Ten Commandments.

Justice Scalia: I don't understand the difference.

I mean it seems to me it would violate the establishment clause, it would equally do so if you said it's a major part of or even a part of.

Now, maybe it makes it wrong to say it's the exclusive one.

It may make it more wrong but we're not grading papers here.

It seems to me that whether it violates the establishment clause depends upon whether you're endorsing... whether you're proselytizing religion.

Mr. Friedman: I think that's correct, Your Honor.

Justice Stevens: What does primacy have to do with it?

Mr. Friedman: I think it makes it an easier case when it asserts this is the one rather than one of several or one of many.

Justice Stevens: But your real position is they wouldn't have to have done that as long as they had the Ten Commandments in the display, that would be enough?

Mr. Friedman: I think it depends on the content and context of the display.

Justice Stevens: Exactly what we've got in Exhibit 3 or whatever it is, that we don't have the statement of purposes, we don't have them saying it's the sole source or the primary source.

They say it's a source.

Does that still violate the establishment clause?

Mr. Friedman: I think it does, Your Honor.

Justice Breyer: Since you have a minute, give me your opinion to the right standard if hypothetically you start with the Goldberg-Schempp idea, that the government is not absolutely forbidden by the establishment clause to recognize the religious nature of the people nor the religious origins of much of our law and so forth but it's easy to go too far and it's easy in this area you are trading on eggs to become far more divisive than you hoped and really end up with something worse than if you stayed out in the first place.

In other words, it's a very delicate matter and it's very easy to offend people.

Now, suppose you start with that.

You're trying to define what is too far constitutionally speaking.

What's your test?

Of the many that have been in our opinions, which do you think works the best for that purpose or some other?

Mr. Friedman: I think the Court's endorsement test has stood the test of time and has worked well.

It allows the District Courts that are most familiar with what is actually happening to look at both the purpose and the effect of a particular display.

I don't think there can be an ironclad rule.

There can be presumptions.

There can be brighter line tests perhaps.

But I think ultimately--

Justice Ginsburg: Within reason outline an approach that would say a religious display is presumptively for... is a presumptive endorsement.

I think with the Baptist brief.

Would you endorse that test?

Mr. Friedman: --We think that test can work very well in a context like this where we're talking about the display of religious texts rather than just symbols.

And the point I think is well worth considering, that we assume that when people post signs or displays, bumper stickers, buttons, that they endorse the content of that text and that the presumption then would place a burden on government to make sure that it is neutralizing the endorsing effect of displaying text.

I think that is a very workable test in a context like this where we're talking about the posting of core religious texts.

Justice Souter: Would you explain why you distinguish text and symbolize them?

You distinguish text from the crucifix and so on.

Why?

Mr. Friedman: It does depend entirely on context, to be sure, but symbols are subject to alternative interpretation.

Text is not.

Or text rarely is.

And text such as this, religious text, cannot be seen as anything other than the revealed Word of God.

I mean, here we have 120 words in the first four Commandments, 142 in the first five Commandments of this display that is a profound, detailed explication of core religious content, core religious meaning.

Justice Souter: I understand the text part but why not adopt the same test for the symbols?

For example, why not adopt it for the Moses up here?

The burden would be on the government to show that it was not approving, endorsing, et cetera, and in this context, that would be pretty easy.

Why not have the same test?

Mr. Friedman: There is no reason why it couldn't be applied just as well.

My point was simply that it's even easier to do it when there is text.

The Court doesn't need to go so far as to decide whether to apply it to both text and symbol, although it certainly could.

It need only go so far as say when government posts religious texts, it must be presumed to endorse the content of that text.

It's a little more difficult when you're talking about symbols, depending on what the symbols are.

Some symbols are far more sectarian such as the Cross, such as the Star of David, than are other symbols.

At least when there is text involved, one presumes that the display of text is an endorsement of the content of that text unless the content and the context make clear that it is neutralizing.

The examples are obvious.

The display of religious art in a government owned art museum, the playing of religious music by a government symphony orchestra, the context of the orchestra, the context of the museum are sufficient to neutralize the religious message that is contained in the display itself.

Here... and the same thing I think would be said of a comparative religion course or a compare and contrast ancient moral code course.

There there is not an endorsement of a particular code, a particular text but rather a neutral educational display about several alternative ones.

That is different from taking one religious code, one revealed Word of God, placing it next to the revered documents that frame the American Republic and saying, these are all alike, these are worthy of equal reverence.

That is simply wrapping the Ten Commandments in the flag and, with all due respect, that constitutes endorsement.

Thank you.

Justice Stevens: Thank you, Mr. Friedman.

Mr. Staver, you have about three minutes left.

Rebuttal of Mathew D. Staver

Mr. Staver: Justice Stevens, the argument before this Court was unlike anything that went down in the District Court or the Circuit Court of Appeals because never was a resolution ever mentioned.

Never did the District Court or the Sixth Circuit ever discuss a resolution.

It was not mentioned in this Court until this answer brief by respondents was filed.

It is not part of the District Court's decision, it was not part of the Circuit Court of Appeals.

The District Court said that what imprinted every action thereafter with defiance in a taint is the mere posting of the first display.

There was no resolution for that display, none is needed.

There is no resolution for the foundations display.

Justice O'Connor: Was there a resolution, Counsel?

Mr. Staver: For the second display, yes, Your Honor, there was.

Justice O'Connor: And whatever is in the record is that resolution?

Mr. Staver: It is that resolution but it is specific to the second display because it specifically mentions what kind of documents are in that display.

It is not a general display regarding posting of documents.

In this case, when the Court--

Justice Stevens: But is it correct that it was not amended when the third display was created?

Mr. Staver: --It was not amended because it was not... it was relevant and fact-specific in the display itself.

Justice Stevens: It is the last expression of the governing body's intent?

Mr. Staver: No, Your Honor.

What's the last expression is the foundations display which clearly a reasonable observer would see.

And if there is any doubt regarding--

Justice O'Connor: But there hasn't been a new resolution.

Mr. Staver: --There is not a new resolution.

Justice O'Connor: And that one wasn't rescinded?

Mr. Staver: That one died, Your Honor, with the Court's ruling.

Justice O'Connor: It was adopted and it still is there, presumably?

Mr. Staver: Presumably.

There is nothing in the record that suggests what happened to it.

Whether it was repealed or not.

But it was specific factually only to that second display, not to the foundations display which the District Court found was fundamentally different.

And if there is any doubt regarding the history of purpose, we would suggest, Justice O'Connor, your suggestion in the Wallace, that if there is any doubt regarding purpose, to look to the effects prong.

And I think when you look to the effects prong, a reasonable observer will see that this is a constitutional display.

This case is one in which the Sixth Circuit drew the most difficult taint, it imposed it in a subsequent action in the most difficult area of the establishment clause and clearly the public officials have substantially and fundamentally changed.

They can't live under this taint forever.

They tried but they could to correct their way.

They tried what they could to display this in a constitutional manner so that anyone passing by would see this as one document among many others.

In addition to the display itself, with all the other hundreds of other documents that are on the wall, that this display has a specific stated purpose.

Justice O'Connor: So presumably these things are open if it goes on to the final hearing?

The preliminary injunction stage?

Mr. Staver: Yes, the preliminary injunction.

If the fact that the resolution is technically latent on the books, they will repeal that, they repudiate that resolution.

Thank you.

Justice Stevens: Thank you.

The case is submitted.

Unknown Speaker: The honorable Court is now adjourned until Monday next at ten o'clock.

Attribution:

The Oyez Project

Featured:

Van Orden v. Perry - Oral Argument

Fri, 09 Jan 2009 14:49:00 +0000

Case:

Van Orden v. Perry

Media File:

03-1500_20050302-argument.mp3

Related Transcript:

2004_03_1500_argument.xml

Transcript:

Argument of Erwin Chemerinsky

Justice Stevens: We'll now hear argument in Van Orden against Perry.

Mr. Chemerinsky.

Mr. Chemerinsky: Good morning, Justice Stevens, and may it please the Court:

On the grounds of the Texas State Capitol, there is one evident religious symbol that conveys a powerful religious message that there is a theistic God and that God has commuted rules for behavior.

Of course, the government may put religious symbols on its property, including the Ten Commandments, but must do so in a way that does not endorse religion or a particular religion, but does not have the purpose of advancing religion, but does not favor any particular religion.

Justice Scalia: Mr. Chemerinsky, I suppose that opening statement suggests that you think that Thanksgiving proclamations are also unconstitutional, which were recommended by the very first Congress, the same Congress that proposed the First Amendment.

Mr. Chemerinsky: No, Your Honor, I would--

Justice Scalia: They also refer to one God, to a theistic ruler of the universe.

Mr. Chemerinsky: --No, Your Honor, I think the Thanksgiving proclamations would be constitutional.

I think it's analogous to the legislative prayers that this Court upheld in Chambers v. Marsh.

I think it's very different than this Ten Commandments monument.

Justice Scalia: All right.

But then you have to narrow your opening statement and say that certainly the State can acknowledge the existence of a unitary God without offending the Establishment Clause.

Mr. Chemerinsky: Yes, Your Honor, but it all depends on how it is done.

Here the way in which it is done is the most powerful and profound religious message that this Court has ever considered on government property.

Here you have a monument that proclaims not only there is a God, but God has dictated rules of behavior for those who follow him or her.

Justice Kennedy: I don't know whether that's any more profound or ultrareligious, super religious than the prayer that the chaplain gives every day in the House.

Mr. Chemerinsky: Your Honor, there is a difference between a prayer that a chaplain gives... in Chambers v. Marsh, this Court emphasized that the prayer by the chaplain was a nonsectarian prayer.

This is very much sectarian.

This proclaims that there is a God.

It proclaims--

Justice Kennedy: Well, I mean, I haven't read the prayer.

I would be surprised if I went through all the prayers and there was no mention, direct or indirect, of the Ten Commandments or a couple of them.

Mr. Chemerinsky: --Your Honor, I would be surprised because here, if you look at these commandments, it's that God has claimed that he is the only God, prohibiting idolatry, prohibiting graven images, prohibiting taking the name of the Lord and God in vain.

Requiring observing of the sabbath.

This is God dictating to God's follower's rules for behavior.

Justice Breyer: Is there any other... I mean, you can continue if you want, but one difference which I've written down is you say that the difference between this and the prayer is that this is more profoundly religious.

Is there any other difference, in your opinion?

Mr. Chemerinsky: No.

I think the key difference is--

Justice Breyer: That's the difference?

So if I happen to read these prayers in the Congress and I came to the conclusion that in terms of a religious message, I actually thought the prayers had the more religious message, then I should vote against you.

Mr. Chemerinsky: --No, Your Honor.

There are, of course, other differences.

As I said to Justice Scalia earlier, with regard to legislative prayer in Chambers versus Marsh, this Court said that there was a history going back to the very first Congress that allowed there to be those kinds of religious invocations.

Ten Commandments monuments standing by themselves, as they do here, certainly are not of that historic origin.

Justice O'Connor: How about if they're packaged in a museum like setting and there is some interest on the part of the State in preserving something.

Mr. Chemerinsky: Yes, Your Honor.

Justice O'Connor: And displaying a whole variety of things?

Mr. Chemerinsky: Of course, there can be Ten Commandments or any religious works as part of a museum setting.

This isn't a museum setting, Your Honor.

Every monument on the Texas--

Justice O'Connor: Is this a kind of a park?

What do we regard this space as?

What is it?

Is it a park like setting?

Mr. Chemerinsky: --It is a park like setting.

It is the acres of the State Capitol grounds.

Every monument on the State Capitol grounds is there because the State legislature wanted to convey a particular message.

It is a felony in Texas, an impeachable offense to put anything on the Capitol grounds without the approval of the legislature.

Most of the monuments are there to honor war veterans.

This is the only religious message anywhere on the Capitol grounds.

And by itself--

Justice O'Connor: Well, would it be all right, in your view, if they put several others up for different religions?

Then is it going to be okay?

Mr. Chemerinsky: --If the clear purpose and message was to honor the diversity of religions in Texas, it would then be permissible.

If it were a series of displays like that frieze, the fifteen different--

Justice O'Connor: You don't object to that?

Mr. Chemerinsky: --Quite the contrary, I think it's a--

Justice O'Connor: Or the depiction on the door of the Court?

Mr. Chemerinsky: --Quite the contrary.

This is exactly how the State may display the Ten Commandments.

Justice Scalia: But the prayers in Congress doesn't do that and our Thanksgiving proclamations don't do that.

They invoke a God, a unitary God, and that's contrary to the dictates of some religions that believe that there are a lot of gods.

Mr. Chemerinsky: Yes, Your Honor, there is--

Justice Scalia: We don't pray to gods, the prayers are always to God.

You know, I don't see why the one is good and the other is bad.

It's no answer to say, well, you know, the former has been around for a long time.

Well, it has but it suggests what the framers and what our society for several hundred years has believed the Establishment Clause means.

And it does not... it is not too sectarian if it invokes a unitary God.

Now, you're saying it becomes too sectarian when it invokes the Ten Commandments.

Mr. Chemerinsky: --No, Your Honor.

I'm saying several things.

As I said earlier, first, this Court in Chambers v. Marsh said that there was a unique history to legislative prayers.

There isn't a similar history here.

Justice Ginsburg: Mr. Chemerinsky, too, doesn't the venue count?

After all, we have had the question of prayer in schools, and the Court has said that that was not all right.

Prayer in the legislature was distinguished.

So it's not just prayer anywhere that the government wants to have it is okay.

Mr. Chemerinsky: Of course, Justice Ginsburg, the venue counts.

And here the venue is very important.

It is the corner between the Texas State Capitol and the Texas Supreme Court.

And in that way, this monument standing alone does convey the government's endorsement for religion.

Justice O'Connor: Okay.

But if the legislature itself can have its sessions opened with a prayer, can the legislature itself want to have the Ten Commandments posted within the legislative halls?

Mr. Chemerinsky: Your Honor, I think there is a very different message that's conveyed.

Justice O'Connor: Can it do that?

Mr. Chemerinsky: No, Your Honor, it can't post the Ten Commandments by itself in its legislative halls because that would then be the government endorsing expression for support for that message.

It cannot be, Your Honor, that just because there is a legislative prayer, that any religious message anywhere on government property would then be permissible.

As Justice Kennedy has said in his opinion for--

Justice O'Connor: But it's so hard to draw that line.

If the legislature can open its own sessions attended by the public with a prayer, you say it cannot, in the same building, display the Ten Commandments.

Mr. Chemerinsky: --That's right, because the message from the government is quite different.

The message with legislative prayers, as this Court found in Chambers v. Marsh, is a recognition of a long historical practice.

But when it comes to the Ten Commandments, it really is different than even a legislative prayer.

This declares not only there is a God, but that God has proclaimed rules for behavior.

The Ten Commandments come from sacred texts.

As Justice Kennedy said in his opinion of County of Allegheny, certainly a city council could not put atop the city hall building a large Latin cross, even if that city council begins every day with a prayer.

It cannot be, though, just because some religious messages are alllowed, like a prayer, that everything then becomes permissible.

Justice Kennedy: Well, you know, in the First Amendment speech area, we're very, very strict.

A moment's delay in publication is a constitutional crisis.

And I'm not sure that we should carry that over to this area, where there is this obsessive concern with any mention of religion.

That seems to me to show a hostility to religion.

I just don't see a balanced dialogue in our cases or in these kinds of arguments.

Mr. Chemerinsky: Your Honor, I don't believe there should be an obsessive concern with religion.

If the Ten Commandments are displayed as part of an overall display of law givers, like that frieze, it's permissible.

But when you put sacred texts somewhere on government property, then the message is that the government is endorsing--

Justice Kennedy: This is a classic avert your eyes.

If an atheist walked by, he can avert his eyes, he can think about something else.

Mr. Chemerinsky: --I don't think so, Your Honor.

This Court has said the key is that the government can't endorse religion, in a way that makes some feel like insiders and some like outsiders.

Imagine somebody who is Muslim or Buddhist or Hindu--

Justice Stevens: May I ask you this question.

Supposing... I recently read a case from the Seventh Circuit on what they did in Lacrosse, Wisconsin.

And as we all know, this organization has donated Ten Commandments monuments all over the country.

And what they did there is they sold the parcel back to the Eagles, their name, and put up a sign which read, this property is not owned or maintained by the City of Lacrosse, nor does the city endorse the religious expression thereon.

Now, my question to you is, if there were a similar disclaimer on this monument, would that be an adequate remedy, in your view?

Mr. Chemerinsky: --It would be a harder case, but I don't think it would be an adequate remedy.

And the reason is the city cannot put a religious symbol standing alone on government property just through disclaimer.

That's exactly what County of Allegheny was.

There the nativity scene in the courthouse had a plaque saying it was donated by others, but that can't excuse it because otherwise the city could put the large Latin cross just with a disclaimer.

Justice Stevens: But if the test is whether the reasonable observer would think that the government is endorsing the religious message, wouldn't the disclaimer make it clear to the reasonable observer the government was not endorsing the message?

Mr. Chemerinsky: I think the disclaimer would make it a harder case, but I think when you're dealing with the ground in a Texas State Capitol and the Texas Supreme Court, that placement, when you're dealing with the Ten Commandments, sacred texts, I still think that the message the reasonable observer would be that this is the government endorsing religion.

Justice O'Connor: At some point, would the State's interest in preserving old objects overcome the objection constitutionally?

Mr. Chemerinsky: Yes, at some point, it could where it was clear to the reasonable observer that it was there because it was an old object.

Justice O'Connor: How did this monument get there?

Was it in... is it true that it was put in as a result of promoting a movie about the Ten Commandments?

Mr. Chemerinsky: The record is unclear as to that.

There are certainly many indications in the popular press that Cecil B. DeMille together with his movie, The Ten Commandments, worked with the Friends of Eagles to have these monuments put around the country.

But there is nothing in the legislative history that links this particular monument to that.

Justice Ginsburg: Isn't the display on the tablets on the top before you get to the text, before you get to, I am the Lord, thy God.

I thought that those were replicas of what was in the film.

Mr. Chemerinsky: I don't know that, Your Honor.

I've tried to find out what that text is.

It is not in Hebrew.

It is not in a script that anyone was able to recognize.

But it is important to notice that if you look at the entire monument, in addition to the Ten Commandments, there is also a Latin symbol of Christ, there is also Jewish Stars of David.

And as I was saying in response to Justice Kennedy's question, imagine the Muslim or the Buddhist who walks into the State Supreme Court to have his or her case heard.

That person will see this monument and realize it's not his or her government.

Justice Scalia: I thought Muslims accept the Ten Commandments.

Mr. Chemerinsky: No, Your Honor, the Muslims do not accept the sacred nature of the Ten Commandments, nor do Hindus, or those who believe in many gods, nor of course, do atheists.

And for that matter, Your Honor, if a Jewish individual would walk by this Ten Commandments, and see that the first commandment isn't the Jewish version, I am the Lord, thy God, took you out of Egypt, out of slavery, would realize it's not his or her government either.

Justice Scalia: You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are.

[Laughter]

And when somebody goes by that monument, I don't think they're studying each one of the commandments.

It's a symbol of the fact that government comes... derives its authority from God.

And that is, it seems to me, an appropriate symbol to be on State grounds.

Mr. Chemerinsky: I disagree, Your Honor.

For the State to put that symbol between its State Capitol and the State Supreme Court is to convey a profound religious message.

If you're just saying, now, this isn't there for its secular reason.

If someone were to read this monument, one sees that it emphasizes its religious content.

Justice Scalia: It is a profound religious message, but it's a profound religious message believed in by the vast majority of the American people, just as belief in monotheism is shared by a vast majority of the American people.

And our traditions show that there is nothing wrong with the government reflecting that.

I mean, we're a tolerant society religiously, but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority's ability to express its belief that government comes from God, which is what this is about.

As Justice Kennedy said, turn your eyes away if it's such a big deal to you.

Mr. Chemerinsky: I disagree, Your Honor.

Because this Court has said that above all, the government can't make some feel like they're insiders and some like outsiders.

Even if they're the majority religion--

Justice Kennedy: Well, suppose a non Christian, say a Muslim, comes before a judge who has very strong Christian beliefs, a very religious person.

Does he feel like an outsider?

And to require that we pretend that there is no religious motivation, no deep religious conviction on the part of many of our public officials seems to me to be a hostility toward religion.

Mr. Chemerinsky: --No, Your Honor.

Imagine that judge put the Ten Commandments right above his or her bench.

That would make some individuals feel like outsiders.

Of course, many judges have religious beliefs, but they can't have the religious beliefs above them.

And Your Honor, that's not hostility to religion.

As this Court said in County of Allegheny, excluding religious symbols like the nativity scene, when displayed by itself, is not hostility to religion.

Last year in Locke v. Davie, this Court said that to deny funding through the State of Washington for scholarships was not hostility to religion.

Enforcing the Establishment Clause is not about hostility to religion.

It is about making sure that every person who walks into that courtroom can feel that it's his or her government.

Justice Breyer: That's an important point to me, but I don't see any way to get there in these difficult cases without making a practical judgment about whether that's really so.

And the reason I say that, I start with Goldberg's opinion with Harlan in Schempp.

And I know there are a lot of others, but I don't know if we've found a satisfactory test.

And the point that they make is the government should be noninvolved with the religious, and it can't favor one over the other.

But at the same time, we are a religious nation, where most people do believe in God and most of our institutions flow from the religious nature of our people.

The City on the Hill, proclaim liberty throughout the land.

All of those are religious.

So how can the government, without what they call the pervasive and brooding commitment to secularism, which they think would be wrong, become necessarily involved because of our traditions, but not go too far?

Now, I come to the conclusion very tentatively, there is no way to do it other than look at the divisive quality of the individual display case by case.

And when I do that, I don't find much divisiveness here.

Now, I'm exposing the whole thing not because I'm accepting it, but I would love to hear what you think.

Mr. Chemerinsky: Yes, Your Honor, I think that the test that this Court has formulated do draw those lines.

With regard to your point about divisiveness, the Ten Commandments is enormously divisive right now.

I don't think we can ignore the social reality.

The chief justice of the Alabama Supreme Court resigned, there are crowds outside today.

I got hate messages this week, not because people care about the Ten Commandments as a secular document, but people care about the Ten Commandments because it's a profound religious message.

And many want that religious message on government property.

And I'm saying the government can put the Ten Commandments there as part of an overall display of law givers, because, Justice O'Connor, it's an overall display about diversity of religion.

But when the Ten Commandments sits by itself it is, to use your word right now, enormously divisive.

And that's why, from that criteria, it does violate the Establishment Clause.

Justice Scalia: What about the opening of this Court's session today, in a manner that has been used since John Marshall, is that divisive because there are a lot of people who don't believe in God.

Mr. Chemerinsky: Because You Honor, I think that you have to distinguish between minimal religious content and maximum religious content.

Justice Ginsburg: Mr. Chemerinsky, on that point, how much of the Ten Commandments... I mean, once we get to thou shalt not kill or murder, then there are tenets to govern a society, but how much are strictly about the obligation that man owes to God?

Mr. Chemerinsky: The first of the two tablets, the first five commandments, Your Honor, and of course religions belief this was written in God's own hand and given to Moses.

It's believed that the first five commandments that you were referring to are God's prescriptions for religious behavior.

The latter five, the others that you're referring to, were God's commands for secular behavior.

All of these are God's commands to God's people.

And that's what makes a difference than the minimal religious content of God save this Honorable Court that Justice Scalia was referring to.

The core of Texas's argument seems to be that it's there for secular purposes.

But of course, if one looks at this monument, one sees that it's emphasizing the religious content and there is nothing that would lend the reasonable observer to see the secular content.

It says in large letters, I am the Lord, thy God.

Justice Ginsburg: Well, suppose, Mr. Chemerinsky, it was like Moses on that frieze where there are commandments showing, but there are only the sixth through tenth commandment.

Would that be all right?

Mr. Chemerinsky: Your Honor, if it was Moses on that frieze together with fourteen other symbols, absolutely okay, because it would clear to the reasonable observer--

Justice Ginsburg: But if we just had the Moses with the tablet that has the instructions for how people will conduct themselves in a civilized society versus worshipping.

Mr. Chemerinsky: --I think that would still be unconstitutional between the Texas State Capitol and the Texas Supreme Court because it would still be the State of Texas expressing the message that there is a God and that God has dictated these rules for behavior.

Justice Souter: Okay, what if you go one step further and there was simply a tablet without any embellishment about source saying, you know, thou shalt not kill, thou shalt not covet, et cetera, basically just the last five commandments, pure and simple.

Would you have any objection on Establishment Clause grounds?

Mr. Chemerinsky: If the tablets were by themselves in that way, between the Texas Supreme Court and the Texas State Capitol, it would be a harder case, but I believe it would still be unconstitutional because those tablets do convey a message that God--

Justice Souter: No, I'm just talking about when I... I don't know if I used the word tablet.

I'm just talking about a piece of stone or a poster that says thou shalt not kill, thou shalt not covet, thou shalt not bear false witness, et cetera.

Would there be any Establishment Clause objection simply because though it does not say so, those were quotations from the last six commandments.

Mr. Chemerinsky: --No, Your Honor.

If all it said was thou shalt not kill and thou shalt not steal, I don't think that that would be a problem because those are a reflection of law.

Justice Scalia: Who are you kidding?

I mean, everybody knows that comes from the Ten Commandments.

And what that message says is that these commands that are engraved on the human heart come from God.

Why put it that way?

You know, instead of that, just quote the State statute against murder.

That's not what they're doing.

They're saying these basic principles of human behavior that we're governed by come from God.

And that message would be conveyed so long as you use the terminology of the Ten Commandments.

That's what the Ten Commandments stand for.

Mr. Chemerinsky: But Your Honor, this Court has emphasized that content and context matter enormously.

And what I'm trying to do is to distinguish the situation where in Texas, it was clearly tablets with the words, I am the Lord, thy God, with five commandments for religious behavior and five for secular behavior.

From Justice Souter's question, there are five others and especially those that are reflected in State law, like thou shalt not kill and thou shalt not steal.

I think that the message is different there.

It is the words, I am the Lord, thy God.

Justice Kennedy: I think you're telling us the State cannot accommodate religion.

The only way they can do it is to put the Ten Commandments up and insist that it's always secular, whether it's predominantly for a secular purpose.

It seems to me that's hypocritical and it's asking religious people to surrender their beliefs and that is not accommodation.

Mr. Chemerinsky: No, Your Honor.

I do think that it degrades religion to have to have the Ten Commandments defended for their secular purpose.

I do think, though, that what's required of the government, when it puts religious symbols on government property, is to not be endorsing religion.

That's why a nativity scene by itself in the County of Allegheny case was unconstitutional.

On the other hand, that's why the nativity scene as part of a unified display in Lynch v. Donnelly was permissible.

That's why, if the Ten Commandments are part of an overall display like this frieze, it's permissible.

As part of an overall display about religious tolerance, and that's what the reasonable observer would see, it is permissible.

But where it is the Ten Commandments themselves, placed as they are here, then it really is about the government endorsing religion, then it is the purpose of advancing religion and then it does violate the Establishment Clause.

Justice Kennedy: So the word accommodate should not be within our jurisprudence?

Mr. Chemerinsky: Accommodate should very much be in the jurisprudence.

And any time there is a Free Exercise Clause claim, then there has to be careful attention to accommodating religion.

But there is no Free Exercise Clause claim in this case, Your Honor, so this isn't a case about accommodating anybody's religious beliefs.

This is about the State expressing support for religion with sacred and solemn religious texts on government property.

And my position is--

Justice Scalia: Can the State express its support for religion generally?

Mr. Chemerinsky: --Your Honor, it all depends--

Justice Scalia: Suppose it didn't have the Ten Commandments, it just had a big thing that says religion is good.

It said religion is the foundation of our institutions.

Suppose there were something like that.

Would that be bad?

Mr. Chemerinsky: --I don't think that would be a problem under the Establishment Clause because it's minimal--

Justice Scalia: But there are atheists who disagree with that intensely.

Mr. Chemerinsky: --But Your Honor, I'm not arguing for a heckler's veto by atheists.

What I am saying is that when the government puts sacred and solemn texts taken directly from the Bible at the core of its State government, it has to then do something to convey the message that it's not there for religious purposes, that it's there for secular purposes.

Justice Scalia: Doesn't it matter whether that text has acquired an independent meaning of its own?

As I say, I don't think most people know what the text of the Ten Commandments are, but they do know that it stands for the fact that our laws are derived from God.

That's what it stands for.

Why isn't that symbolism sufficient to enable the State of Texas to use it?

Mr. Chemerinsky: The Ten Commandments monument by itself conveys the message that the Ten Commandments are the source of law and it's that message the State can't convey.

May I save the rest of the time for rebuttal?

Justice Stevens: Yes, you may save your time.

Mr. Chemerinsky: Thank you.

Justice Stevens: General Abbott, we'll hear from you, please.

Argument of Greg Abbott

Mr. Abbott: Justice Stevens, and may it please the Court:

Every court that has reviewed the specific facts of this case has agreed that the Texas monument is constitutional under this Court's well settled precedents in Lynch and Allegheny.

This Court should agree that the Texas monument should not be torn down from its historical place for three reasons.

First, the Ten Commandments is an historically recognized symbol of law.

Second, this monument is one of the smallest of the 17 monuments on the Capitol grounds, and like most of the other monuments, was a gift to the State of Texas and is clearly recognized as such on the monument itself.

And third, this monument has stood for more than 40 years without controversy on a national historic landmark.

In fact, even the--

Justice Stevens: May I ask you this question?

Under your analysis of the reason this is justifiable.

Would it equally be permissible to have a crucifix of the same size in the same location on the Capitol grounds?

Mr. Abbott: --Justice Stevens, I think that would pose a much greater problem.

Justice Stevens: That's not my question.

Do you think it would be permissible... it seems to me your reasoning that you've given us would support that result.

And maybe that's the correct result.

I'm wondering what your view is.

Mr. Abbott: I seriously question whether or not a crucifix would be constitutionally acceptable in that same location, and for the very same reasons which I'm articulating why the Ten Commandments would be acceptable in this location.

The crucifix is not like the Ten Commandments in that it's not an historically recognized symbol of law.

It doesn't send a secular message to all the people, regardless of whether they are believers or not believers of the important role the Ten Commandments have played in the development of law.

Justice Scalia: It's not a secular message.

I mean, if you're watering it down to say that the only reason it's okay is it sends nothing but a secular message, I can't agree with you.

I think the message it sends is that law is... and our institutions come from God.

And if you don't think it conveys that message, I just think you're kidding yourself.

Mr. Abbott: Well, Justice Scalia, the Ten Commandments send both a religious message and a secular message.

When people--

Justice O'Connor: But the district court, I think in this very case, found that commemorating the Ten Commandments' role in the development of secular law was not one of the State's purposes in accepting the monument.

Don't we accept that finding as the case comes to us?

That hasn't been challenged.

We don't have any cross appeal.

I assume we accept that finding of the district court.

Mr. Abbott: --The Court obviously is correct to accept that finding.

As you know, from the district court's finding, the secular purpose that was accepted by the district court was to honor the Paternal Order of Eagles.

But also there was an ongoing--

Justice O'Connor: But you're arguing for something contrary to the district court's finding.

Mr. Abbott: --I'm actually, Justice O'Connor, arguing for purposes that are in addition to that district court's finding because there was an ongoing purpose to retain this now historical monument that has stood for more than 40 years without controversy on a national and historic landmark.

Justice Kennedy: So in another case, if a government official feels that the Ten Commandments have been very, very important in his or her life as a spiritual or religious matter and wants other people to know how important the Ten Commandments are, he cannot accept on behalf of the city the Ten Commandments. And so you can have no Ten Commandments in city A with the Ten Commandments in city B.

General, that doesn't make a lot of sense to me.

And again, you're just doing with purpose what you did in response to Justice Scalia's question.

You're asking us to ignore the religious purpose that is the most manifest value of these symbols.

Mr. Abbott: Well, with regard to both purpose and effect in this particular setting, I don't think that religion was the driving force.

I know that all of the evidence shows that religion was not a driving force in any respect.

Justice O'Connor: I suppose that every monument that's on the State Capitol grounds in Texas in a sense conveys a message of State endorsement, State endorsement of the role of servicemen in fighting earlier wars or in support of the Boy Scouts or whatever it might be, doesn't it?

I mean, by placing them there with the legislative approval, is that not really some kind of a message of endorsement for each one?

Mr. Abbott: If I may clarify an important fact and that is clearly the state of Texas, by displaying 17 monuments in a museum like setting on Capitol grounds, is trying to acknowledge and commemorate certain events.

It's important for the Court to remember, though, that the State of Texas has specifically endorsed nine of those monuments by putting the State seal or the Lone Star seal for the State of Texas on those nine monuments.

This monument does not have that kind of endorsement on there.

Justice Souter: Isn't it all the case, as has been pointed out, that no monument is going to be on the grounds of the Texas State Capitol without the approval of the legislature?

You don't dispute that, do you?

Mr. Abbott: Not at all.

That is very true.

Justice Souter: And you don't dispute that anyone going on those grounds would assume that the State government approved it or it wouldn't be there?

Mr. Abbott: Justice Souter, of course the presumption would be that people on the Capitol grounds would assume the State of Texas wanted those monuments on the Capitol grounds.

Justice Kennedy: Well, I'm not sure that that endorsement... in England, there is a square where they have King Charles on one hand... on one end and he's looking at Oliver Cromwell, who beheaded him, on the other.

I don't know if you have to endorse one or the other.

Mr. Abbott: Well, Justice Kennedy, I believe that there is a very meaningful difference between this Court's standards of an endorsement and what a State or the nation may do with regard to commemoration.

As an easy example, on the National Mall, there is, of course, the Lincoln Memorial and in the Lincoln Memorial, there is text from the King James version of the Bible.

The nation commemorates and acknowledges Lincoln and what he has said.

But by that display, the United States is not trying to endorse the King James version of the Bible or a particular religious message in that.

Instead what the state--

Justice Souter: But you have to contend with the fact that the district court found that this sort of commemoration of the commandments involved was not the objective in placing the monument there, so you're left basically with a religious text.

And if anybody has any doubt about that, the religious text is surrounded by some religious symbols, the Chi Rho, the Star of David.

So it seems to me that it's hard to find, if we accept the district court findings, that there's anything here but an expression of approval by the State of Texas for a religious expression, and only for the religious expression.

Mr. Abbott: --All other factors, though, Justice Souter, as a person who stands in front of that monument clearly recognizes, centered in a specialized scroll is an indication that this was a monument that was dedicated and presented to the people and the youth of the State of Texas by the Fraternal Order of Eagles.

There is no stamp of approval on this by the State of Texas on that monument.

Justice Souter: But you're not trying to withdraw the... I took it to be the concession that of course anyone would reasonably assume that the State of Texas approved this message, and thought it was appropriate to devote state property to its promulgation.

Mr. Abbott: Clearly the State of Texas approved the monument being on the grounds--

Justice Souter: But then the fact that the Eagles also approve it doesn't really get us very far, does it?

Mr. Abbott: --Well, where I believe it gets you, as this Court has recognized, there is a very meaningful difference between acknowledging something and endorsing something.

For example, the creche in Lynch or the menorah in Allegheny.

Justice Souter: Let me ask you this.

If the Eagles' presentation statement weren't on there, would that make a difference to Establishment Clause analysis?

Mr. Abbott: I think the Eagles' disclaimer on there helps our case but if it were not on there, I think the monument could still stand just as the creche did in Lynch or the menorah in Allegheny.

The city of Pawtucket was not endorsing the creche in the display, it was acknowledged as part of the overall holiday celebration.

Justice Souter: What is the... that's one of the problems with the argument, it seems to me, that by putting the Ten Commandments monument on grounds that have lots of other monuments, that the religious message is somehow either diluted or changed.

Contrast the situation in Texas with what we've got here.

You've got Moses up there with at least the last five commandments showing.

But Moses is in the company of a group of individuals who are nothing but law givers.

You've got Menes and Hammurabi and John Marshall and the rest of them.

There is an obvious theme.

Anybody who looks at the identity... or knows the identity of these figures is saying they're getting at law givers.

But if you look at the grounds of the Texas State Capitol, you see wars, pioneer women, children and so on.

There is no one common theme.

The only theme seems to be these are objects or symbols that are worthy of some kind of respect.

And one of them is religious.

Being mixed into a group that has no common theme does not eliminate the religious... the obvious religious message from this monument.

Isn't that correct?

Mr. Abbott: Well, just as this Court may display in the courtroom itself, Moses with the Ten Commandments amongst law givers, doesn't mean that that is the only way the Ten Commandments--

Justice Souter: Maybe it doesn't, but I'm trying to find a rationale for the argument that's being made, and that I thought you were alluding to.

The argument is that by mixing this in with a grab bag of other symbols, you have somehow diluted or changed the focus from a religious message to something else.

And I can understand that in the Moses case in the frieze because there is a clear common theme.

On the Texas grounds, at least insofar as I can tell, there is no common theme.

There are a series of objects that say, these are worthy of veneration.

One of them is religious.

There is nothing that removes the religious message from its prominence in the display the way the religious message is removed from prominence in the Moses display, isn't that correct?

Mr. Abbott: --Your Honor, if I may explain with two points.

One, there is a common theme on the Texas Capitol grounds, just as there are on most Capitol grounds and on the National Mall.

And the common theme is to recognize historical influences in our country and in our State.

Justice Souter: But what do you do with the district court finding?

Mr. Abbott: Well, the district court finding obviously chose to decide that the secular purpose for the display was to honor the Fraternal Order of Eagles for their commitment to combatting juvenile delinquency.

But that is different... the purpose why the district court found why the display was constitutional is different than the message that is being sent to the reasonable observer.

Justice Souter: You had a second point and I don't want to miss your second point.

Mr. Abbott: The second point is that there are other displays in this Court.

As a person walks into this courtroom or exits the courtroom, they don't see the Ten Commandments in a display with a bunch of law givers.

Instead, they see the Ten Commandments alone with an eagle above it.

Justice Ginsburg: They see blank tablets.

They don't see any writing.

This is the only one that has script on it.

It has numbers and in fact that's confusing because one of them, the people think is the Ten Commandments is the Bill of Rights.

[Laughter]

Mr. Abbott: Justice Ginsburg, clearly the Ten Commandments that are reflected on the doorway into and out of this courtroom don't have words on them like the tablets do in the State of Texas.

Justice Scalia: But we know what they are, don't we?

Mr. Abbott: We do and that's the point.

Even more importantly, the reasonable observer knows what--

Justice Stevens: But do we know which version of the Ten Commandments it stands for?

There are three different versions at least.

Mr. Abbott: --I happen to agree with the Petitioner.

There is more than three versions of the Ten Commandments.

And the purpose, if you go back to what the Eagles were trying to achieve here, was to come up with a version of the Ten Commandments that wasn't reflective of any particular religion.

Justice Scalia: And it doesn't matter what the version is, does it?

If it just stands for the fact that laws... the foundation of our laws is God.

If that's all it stands for, who cares what the text is.

Justice Stevens: General Abbott, would the Texas purpose be equally served if the monument had on it the kind of disclaimer that the city in Wisconsin put on its monument?

Mr. Abbott: Justice Stevens, I apologize, I'm not familiar with that disclaimer.

Justice Stevens: It reads this way.

What they did is they sold the parcel of land that had the Eagles' donation on it back to the Eagles and then they put a fence around it and then they put this sign up,

"This property is not owned or maintained by the City of Lacrosse, nor does the City endorse the religious expression thereon. "

Maybe as long as it's still on the property, it couldn't be the same.

But suppose you had a comparable disclaimer.

Would that defeat any of the purposes on which you relied to justify having the statue there?

Mr. Abbott: A disclaimer like that would surely ensure that this display is constitutional.

However, it's our contention--

Justice Stevens: And would it undermine the message that you legitimately seek to convey?

Mr. Abbott: --I don't believe it would.

Justice Scalia: Why don't you do it and we wouldn't have this case?

I really would consider it something of a Pyrrhic victory if you win on the ground that you're arguing.

So that in all future cases, we're going to have to examine displays of the Ten Commandments to see whether there was ever any intent to say that our laws are ultimately dependent upon God.

Is that what you want us to do case by case?

Mr. Abbott: Well, this Court obviously has decided Establishment Clause cases on a case by case basis, but in this particular instance, the Ten Commandments displayed in a museum like setting on the Capitol grounds arrayed among 17 other monuments, the message that is received by the viewer who is trekking through the Capitol grounds looking at monuments is clearly one not of the State of Texas.

Justice Breyer: I've got to get one question before you leave because you're the one who knows the record.

And what I've had a hard time finding in the record is what I think there must be some material that the State or somebody in a tourist office or a guide or somebody tells people what the 17 different monuments are.

And all I've found is the general brochure which doesn't tell them what they are.

And I found something on the Internet.

Well, which is in the record.

But aside from this page from the Internet in the record and that, is there anything else in this record that if somebody wanders around, they're on the State grounds, they say, what is this, what are these things anyway?

There must be something to tells them.

And where is it?

Mr. Abbott: The state provides a walking tour guide.

Justice Breyer: And the brochure doesn't tell what they are.

This thing, it says grounds?

Mr. Abbott: Your Honor, Justice Breyer, if I could refer you to page 205 of the joint appendix, it provides a description of each of the monuments on the walking tour.

And if I could also refer the Court to page 117 of the joint appendix, it shows the actual walking tour where a person would go along the process of seeing the monuments.

But clearly as they walk through the Capitol grounds, what any observer, not just the reasonable observer, what any observer would notice is that before they could even get to this particular monument, they will have passed in full view of countless other monuments and historical markers clearly indicating to them that they are not there for the purpose of seeing just the Ten Commandments but they are in a museum like setting cast amongst many different kinds of monuments.

And so they appreciate the setting before they even arrive at the Ten Commandments monument.

Also when they arrive at the Ten Commandments monument, they will notice it is one of the smallest of the monuments on the Texas Capitol grounds.

It does have the disclaimer on it indicating that it was donated by the Fraternal Order of Eagles.

It does not have the State seal on it like many of the other monuments, so it's not--

Justice Ginsburg: Is it like how many other monuments?

This is not peculiar to Texas.

The Order of the Eagles have given how many monuments just like this one, identical to this one?

Mr. Abbott: --Justice Ginsburg, it is actually not clear from the record.

There have been some accounts of hundreds, maybe even into the thousands that the Fraternal Order of Eagles have given out.

And I cannot tell you for a fact that they are all identical.

Justice Ginsburg: When you said that every court that has considered this case has said it's compatible with the Establishment Clause, did you mean just this Texas case or other cases involving an Eagles Ten Commandments?

Mr. Abbott: Justice Ginsburg, my reference was to the fact that every case that has considered the specific... every court that has considered the specific facts of this case, meaning the Texas case--

Justice Ginsburg: So you didn't mean this particular depiction of the Ten Commandments?

Mr. Abbott: --No, Your Honor.

What I meant is that both the district court and the Fifth Circuit Court of Appeals specifically reviewed the facts of this case and were all in complete agreement that the facts of this case render this monument constitutional under this Court's well settled precedents in Lynch and Allegheny.

One other thing I would like to draw the Court's attention to that will give you a very well understanding of what the monument looks like and its setting is the videotape that is Exhibit 44, it's obviously not part of the joint appendix, but it demonstrates how this particular monument is set in a museum like setting amongst many other monuments and gives you the perspective of what the typical viewer would appreciate as they walk around the Capitol grounds.

Justice Ginsburg: Kind of an eclectic museum.

One message that you get is that the State is honoring the donor of the various--

Justice Stevens: General Abbott, I want to thank you for your argument and also for demonstrating that it's not necessary to stand at the lectern in order to a fine job.

Thank you.

Mr. Abbott: Thank you, Your Honor.

Justice Stevens: Mr. Clement.

Argument of Paul D. Clement

Mr. Clement: Justice Stevens, and may it please the Court:

The Ten Commandments have undeniable religious significance, but they also have secular significance as a code of law and as a well recognized historical symbol of the law.

When a State decides to display a Ten Commandments display along with more than a dozen other monuments on its Capitol grounds in order to honor the donor, it is not endorsing the religious text of the Ten Commandments.

And in the same way, when a state has that monument as part of such a collection, the Establishment Clause should not be interpreted to force them to send a message of hostility to religion by singling out that one monument for removal solely because of its religious content.

Justice Stevens: Can I ask you to address one thing that troubles me about the case?

As I understand it, it's the Protestant version basically of the Ten Commandments we have before us, which has significant differences from the Catholic version and the Jewish version.

And I understand it was the result of consultation and so forth.

But I noticed in your brief, you list the States in which the Ten Commandments displays are listed, there is none for Rhode Island, which I often think of as primarily a Catholic state, and the only one from Massachusetts is a frieze on the north wall of the public library which apparently didn't have the text of the commandments in it.

Is there any significance to the fact that this kind of display may be more popular in areas of the country where the Protestant religion is dominant as opposed to other versions of Christian religions?

Mr. Clement: Justice Stevens, I don't think so.

I mean, we didn't purport to do an exhaustive survey, but I think there is a well represented group of displays throughout the country including, I think, in States that probably have relatively high Catholic populations.

But I think we would steer this Court away from attributing too much significance to the fact that if a State is going to display the Ten Commandments at all, it will necessarily have to display a version that reflects one or another sect's preferences.

In the Marsh case, for example, this Court upheld legislative prayer.

It understood that they would necessarily have to choose a chaplain and that chaplain would necessarily be of one denomination or another.

And this Court didn't doom the whole practice of legislative prayer because of the necessity of picking a chaplain of one denomination or another.

In fact, in the Marsh case itself, this court upheld Nebraska's practice, even though they had chosen the same Presbyterian minister for 16 straight years.

And so I don't think this Court in other Establishment Clause contexts has steered away from putting the States and municipalities in a catch 22.

And given that this Court has suggested even in Stone against Graham that the Ten Commandments can be displayed, can be used in certain settings, it can't be that once the State in practice picks a particular version, it's all of a sudden guilty of a sectarian preference.

Justice Stevens: Of course, the other thing that's notable about your listing is most of the examples are examples of displays of the event itself rather than the text.

And there is an argument made I think by Professor Laycock that when you display the entire text, it's kind of a different sort of symbol than when you just have a symbolic presentation.

Mr. Clement: Well, Justice Stevens, I think that quite a few... both types of displays and I think the very fact the Fraternal Order of Eagles put a lot of displays out suggests that a bunch of them are textual displays.

I'm not sure, though, that a display that actually has Moses receiving the Ten Commandments from God is any less religious.

I would suggest that's actually more religious than one that just displays the monument standing alone.

If the monuments are standing alone, you can I think appreciate the fact that maybe they're being displayed for their secular significance as well as their religious significance.

When Moses is there, it's hard to avoid the implication that they are the revealed law of God, as opposed to also a secular code.

So in that sense, I'm not sure that the variations in the display take away from the fact that there is religious content--

Justice Stevens: A symbolic display is less objectionable when quoting the text as this monument does?

Mr. Clement: --Well, Justice Stevens, I would say... my point is not that there are not other ways to display it.

Certainly I think, as we point out in our brief, blank tablets or tablets with Roman numerals are less objectionable... certainly, I think they're beyond objection... than a textual display.

My point was that I'm not quite sure how one would balance sort of four commandments and Moses versus all Ten Commandments in text.

I think it's a close call.

Justice Stevens: Well, except the four commandments and Moses would avoid the differences between the three different versions of the Ten Commandments, whereas when you quote one, you must select one over the other two.

Mr. Clement: Well, I guess I'm not sure that's true.

I mean, some of the displays that are out there in courthouses have Moses receiving the commandments and have text.

And I guess, my point, though, would be, again--

Justice Stevens: Most of them don't.

Mr. Clement: --To be sure, to be sure.

But I would hope the constitutional line wouldn't be that you can't have text.

I mean, the Ten Commandments have a role in our society and had an influence on the development of the law as text.

I mean, they weren't influential with ten Roman numbers.

They were influential as text.

Justice Ginsburg: General Clement, there is a question I have about the government's position.

And does place matter at all?

I mean, here we're talking about the grounds surrounding a State Capitol.

What about every school room, if that's the choice of the school board?

Is it the same or do you make... or every courtroom up to the court to decide for itself?

Mr. Clement: Justice Ginsburg, I certainly think location and context matters.

I think in almost every Establishment Clause context, the setting and context matters a great deal.

The school case, for example, as you suggest, I mean, unless this Court is going to revisit Stone against Graham, it's certainly true that the school context at least raises much more difficult questions.

In terms of where it can be displayed in the courthouse, I think there are certainly permissible displays in the courthouse, but it may be something all together different to have a display in a way that it actually looks like a religious sanctuary within the walls of the courthouse.

Justice Ginsburg: It looks just like this monument.

Let's take this monument and put it in the rotunda of the court because the judges of that court choose to have it there.

Is that all right?

Mr. Clement: Justice Ginsburg, I think putting it in the rotunda of the court as a stand alone monument, giving it sort of pride of place, if you will, raises a much more difficult question, to be sure, and may well cross the constitutional line.

As I was alluding to, the one case I'm familiar with, which is the case of the Alabama Supreme Court, there it was displayed in a way that the district court literally found it was like a religious sanctuary within the walls of the court.

Justice Kennedy: And do you think that it should cross the constitutional line under the interpretational theory of the First Amendment you wish us to adopt?

Mr. Clement: I think the display that I have in mind in the Alabama Supreme Court probably does cross the constitutional line even under our view.

I think that a display of the Ten Commandments in some appropriate way in the courthouse certainly wouldn't cross the line that this Court... that we would have this Court draw.

I mean, we think, for example, it cannot be that the very fact that moving it closer to the courthouse itself is a constitutional problem because as you yourself have pointed out, Justice Kennedy, the legislative prayers that were approved in Marsh v. Chambers were at the absolute epicenter of the government.

And still those were a permissible acknowledgment of religion.

So I think while context matters, I don't think solely the fact that it's moved closer to the seat of government does have a dispositive impact.

And again, I would say in response to Justice Stevens' question, I do think it is important to remember that there is going to have to be a choice among the various documents if they are going to be displayed at all.

And I don't think that the Constitution puts the municipalities and the States in the bind of being able to display the Ten Commandments in theory, but in fact, not being able to pick any one version--

Justice Stevens: What would your comment be on requiring a disclaimer of some kind?

Mr. Clement: --Well, Justice Stevens, two points to make about that.

One is certainly a disclaimer would make this an easier case.

And I would point out that there is a disclaimer of sorts on the monument already because it clearly states that it was a gift from the Fraternal Order of Eagles.

Justice Stevens: It is kind of ambiguous.

Mr. Clement: It is, Justice Stevens, and I'm troubled frankly by the suggestion that they would have to go as far as you suggested they would go under the City of Lacrosse case.

The idea that in order to have the Ten Commandments monument on the Capitol grounds, the State of Texas has to cordon that monument off, unlike any other of the 17 monuments, suggests a hostility to religion.

I think the idea that there has to be a fence away from the Ten Commandments to make clear that the State has nothing to do with the Ten Commandments is bending over too far in the other direction.

The State can have, as this Court has acknowledged many times, permissible acknowledgments of religion.

And I don't think in this case that the State of Texas has gone too far.

One other point I think that is important to put on the table, and it is consistent with the analysis of both the district court and the Fifth Circuit, is that whatever the original purpose is for Texas accepting the monument and displaying it in the first instance, they now have an additional secular purpose in retaining the monument.

And I would point this Court to Judge Becker's analysis in the Chester County case for the Third Circuit.

In that case, he had a display that was admittedly smaller, but it was actually a much more overtly sectarian version of the Ten Commandments.

It had the Ten Commandments plus the summary of the Ten Commandments from the New Testament.

And nonetheless, Judge Becker said that in that case, the monument had been there since 1920 and Chester County had a legitimate secular purpose in maintaining that document and maintaining the plaque on the courthouse.

And I think he correctly understood that in these cases of displays that have stood for 40 years or longer, that the State is in something of a dilemma.

Thank you, Your Honor.

Justice Stevens: Mr. Chereminsky, you have four minutes left.

Rebuttal of Erwin Chemerinsky

Mr. Chemerinsky: Thank you.

This case comes down to two questions.

First, is the Ten Commandments a highly religious message.

And second, can the government place a single religious message on government property at the seat of its government.

As to the first question, Stone v. Graham resolves this because this Court said that the Ten Commandments is an inherently religious message no matter what disclaimer accompanies it.

The Ten Commandments is not on the Texas State Capitol grounds simply to recognize the role of religion in government.

It is not simply an acknowledgment.

It is sacred text taken directly from the Bible.

It's not there about the history of religion in Texas.

There is nothing to tell the reasonable observer that it is there for historical purposes.

What about all the other religions that have played a role in Texas history?

The Mojave religion, even Madeleine Murray O'Hare.

Is Texas saying they would accept statues for all of these individuals there as part of the history of Texas?

The second question is, can the government place a single religious message by itself on government property, especially at the seat of government.

The County of Allegheny case resolves that.

This is much like the nativity scene at the seat of the county government.

What's important and hasn't gotten enough emphasis this morning, this is the sole religious message anywhere on the Texas State Capitol grounds.

This isn't a museum.

Every item that's there is there because the Texas legislature chose to put it there.

Most are there to honor veterans of particular wars.

Texas put this there precisely to express the religious message.

Your Honors, what's left of the Establishment Clause if any item can be displayed with the most profound religious contents?

Do we then say the observer can just avert his or her eyes?

The observer could have averted his or her eyes in the County of Allegheny case.

But this Court was clear in saying that a single religious message, a single religious symbol on government property is inherently an establishment of religion.

For this reason, the Texas monument violates the Establishment Clause.

Thank you.

Justice Stevens: Thank you, Mr. Chereminsky.

The case is submitted.

We will now hear argument in the--

Attribution:

The Oyez Project

Featured:

Good News Club v. Milford Central School - Oral Argument

Fri, 09 Jan 2009 14:50:32 +0000

Case:

Good News Club v. Milford Central School

Media File:

99-2036_20010228-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Thomas Marcelle

Chief Justice Rehnquist: We'll hear argument now on number 99-2036.

Good News Club v. Milford Central School.

Mr. Marcelle.

Mr. Marcelle: Mr. Chief Justice and may it please the Court--

This is a free speech case.

On page 13 of its brief in opposition to certiorari, Milford concedes that State law, the same State law at issue in Lamb's Chapel, requires it to censor petitioner's speech from its broad community forums at all times, to all audiences because they had a religious purpose.

This Court rejected such an argument in Lamb's Chapel.

It should reject it in this case as well.

The Second Circuit circumvented this Court's decision in Lamb's Chapel by resurrecting a distinction that this Court buried in Widmar.

A distinction between constitutionally protected speech and unconstitutionally protected religious worship and instruction.

Justice Scalia: Mr. Marcelle, did you cite Lamb's Chapel to the Second Circuit?

Mr. Marcelle: Yes, Your Honor, quite extensively, and dissent as well said, Judge Jacobs said the case couldn't be squared with Lamb's Chapel.

Justice Scalia: Lamb's Chapel, if I'm correct, is not even cited in the Second Circuit's opinion, is that right?

Mr. Marcelle: That's correct, Your Honor.

Justice Scalia: Isn't even mentioned?

Mr. Marcelle: Isn't even mentioned.

And I think the way they got around Lamb's Chapel, Your Honor, was really by embracing a distinction that this Court rejected in Rosenberger, a distinction--

Justice Scalia: I assume that the judge who wrote the opinion for the Second Circuit was aware of Lamb's Chapel, not just because you cited it, but because it had reversed an earlier decision of his, isn't that right?

Mr. Marcelle: --That's correct, Your Honor.

He was the author of Lamb's Chapel that this Court reversed.

And I think the way--

Justice O'Connor: Mr. Marcelle, could you clarify for us the nature of the right that you are asserting.

Now, could the school district say we are not going to allow access to any groups in off school hours?

Mr. Marcelle: --Absolutely.

Justice O'Connor: And you contend that the school has, instead of doing that, opened a limited public forum allowing some groups to use the school in off hours?

Mr. Marcelle: That's correct, Your Honor.

Justice O'Connor: Could the school say only hours after 6 p.m.?

Mr. Marcelle: Your Honor, yes, they--

Justice O'Connor: And only certain days a week?

Mr. Marcelle: --Yes, Your Honor.

They have broad discretion, the school board--

Justice O'Connor: You're just seeking equal access on the same terms that the school offers it to other groups to benefit the welfare of the community, is that the idea?

Mr. Marcelle: --Exactly, Justice O'Connor.

We're not asking for unique access, just equal access.

Justice O'Connor: What if a church asks for privilege to conduct church services once a week during the hours the school allows?

Mr. Marcelle: Because, Your Honor, Milford has chosen to create a forum that it's probably the broadest possible forum you could create, the uses that pertain to the welfare of the community under this policy, I think they would a Mass, or a church service would qualify, but of course, they have the power and the discretion.

Justice O'Connor: So if one of the local churches came in and said we'd like to use it one day a week to conduct our regular services, that would have to be granted as well, if it fell on a day and an hour when the school said it was open?

Mr. Marcelle: Yes, Your Honor, under this policy.

Of course the school could write the policy to limit it to athletic, just athletic events or just theatrical events but they couldn't exclude religious groups or religious viewpoints on those subjects.

Chief Justice Rehnquist: Well but, I think you can say that the school, that the school couldn't exclude religious viewpoints or religious groups and still not necessarily say that it had to be open for a full dress religious service.

Mr. Marcelle: Mr. Chief Justice, that's correct.

I think again in this case Milford has drafted the broadest possible policy.

It's really when you say any social, civic or recreation use or other uses pertaining to the community you, I think, have created the broadest possible forum--

Justice Kennedy: It specifically allows meetings and entertainment events and other uses.

Mr. Marcelle: --That's correct.

And I think the phrase is other uses that pertain to the welfare of the community, Justice Kennedy.

Justice Ginsburg: Might there not be a problem with the establishment clause, apart from the viewpoint versus content discrimination if there were say a church service to be conducted the same time the Boy Scouts are meeting?

Mr. Marcelle: I don't believe so, Justice Ginsburg, for this reason.

When you choose, when you choose, as Milford has in this case, to shut its school down at 3 o'clock and thereby open up a public forum inside your school, you can't restrict religious viewpoints even if the viewpoint in the speech is exercise in a religious ceremony.

Justice Ginsburg: But you are talking about a First Amendment free speech right.

That's how you open this.

There is also an issue that hasn't been aired in this case, and that is the issue that arose in Widmar and in Murgens, the distinction between, for establishment clause purposes, people of a certain sophistication versus younger people.

Mr. Marcelle: Justice Ginsburg, I'll give you two answers to your inquiry.

One, I think this is like Widmar.

For example, in Widmar would essentially be the cornerstone group which was the student group that sought access to the school was a religious group singing religious songs, reading the Bible and praying, and this Court didn't find a constitutional problem in that case because it was--

Justice Ginsburg: The age of the, the... that played some role in the Court's decision, didn't it?

That these were college students who had a degree of sophistication and could distinguish between just opening it up to everybody, and the school endorsing it?

Mr. Marcelle: --That's correct, Justice Ginsburg.

And in this case, in Widmar, the appropriate community was the students so you would look at the observer student, but in this case, Milford has ended school and has opened up a community forum for parents to initiate and parents to run these community groups.

Justice Scalia: What was at issue in Widmar?

What, what kind of activity?

Mr. Marcelle: It was a... praying and reading the Bible and singing religious songs and teaching from the Bible.

Justice Scalia: In, in the school or to the whole school body, before the whole school body?

Mr. Marcelle: Not before the whole school body, Your Honor.

Just to the participants who wanted to hear and chose to hear this message like this case.

The only children who attend the Good News Club are sent there by their parents.

Justice Scalia: And that was upheld?

Mr. Marcelle: And that was upheld, Your Honor.

Justice Souter: I'm sorry.

Isn't the nub of the problem in this case that you're not dealing with college students, you're dealing with grade school kids, kids from, I think it was ages starting at six going up to 12.

You're doing it... in this particular case, the meeting was being held immediately after the school and the meeting sounds to me as it was described as Sunday school.

They pray.

They sing sort of children's religious songs, and they have a teaching lesson and I guess some discussion, but it sounds like Sunday school, and isn't the problem in this case that you don't have a sophisticated group of people of college age who know that the university is not proselytizing them or approving of their particular religious practice, whereas in this case you have a bunch of kids who just don't make those kinds of distinctions, and isn't that the nub of the establishment clause problem here, which didn't exist in Widmar?

Mr. Marcelle: If I may, Justice, be allowed to give you, kind of, two answers.

One, that's not the case because if this meeting was conducted at 9 o'clock at night and was given just to adults, State law would prohibit from them meeting under those circumstances.

Justice Souter: Well, that, that might be the case, and it might be the case that you would have a different case before us if those were your facts, but whether State law would prohibit it or not, my question is, don't we have here at least a substantial, I won't decide it from the bench, but don't we have a substantial establishment clause issue, which we simply didn't have in Widmar so that you can't take Widmar as being direct authority for what was going on here?

Mr. Marcelle: I would say the answer... and that would be in the second part of my answer.

Justice Souter: Right.

Get to number two.

Mr. Marcelle: --to your, to your question, is the parents are the ones who decide whether or not the children will attend.

Justice Scalia: He's worried about the other children who are, who are supposedly hanging around the school after the bell rings, instead of skipping off the way my kids do.

Actually, and they are infected by seeing these other kids going into an activity which they think represents the approval of the State for these religious services.

I think that's the point he's making.

Justice Souter: I would never spurn Justice Scalia's help, but actually... actually, I think you understood my question.

Why don't you answer it as modified by Justice Scalia.

Mr. Marcelle: I guess I would go back to Justice O'Connor's concurrence in Capitol Square where she said the endorsement tests and the establishment clause are concerned with the political community at large and not particular individuals or isolated observers.

Here the day ends and--

Justice Souter: That's, that's, you know, that's because that was the group to which Capitol Plaza was appealing, but here, the appeal is to kids, and in particular, to the kids who are going to this Sunday school kind of service.

Mr. Marcelle: --I guess I would disagree with all respect, Justice Souter.

I think the appeal is to the parents.

Justice Scalia: Mr. Marcelle, was this the basis for the school's refusal to allow the group, you can't do it right after school?

Was that the--

Mr. Marcelle: No.

That was not the basis.

Justice Scalia: --And was this point raised before the Second Circuit?

Was it part of the Second Circuit's opinion?

Mr. Marcelle: Absolutely not.

Justice Scalia: Was the point raised before the Second Circuit?

Mr. Marcelle: If I could search my memory and I don't believe, or if it was raised, it was raised tangentially, Your Honor.

It certainly wasn't the thrust.

Justice Souter: Well then, then do you feel that the decision that the judgment of the Second Circuit should be vacated and the case should be remanded for consideration of this issue?

Mr. Marcelle: Well, I, I think what happens is for the purpose of--

Justice Souter: What do you, what do you think should happen?

Mr. Marcelle: --Excuse me.

I think this case should be reversed and remanded back to district court to grant the relief we requested.

Justice Souter: And why, why should this issue not be considered in the Second Circuit?

Mr. Marcelle: I believe that Milford school had the burden of proof.

Justice Ginsburg: But you were the Plaintiff in the case, and you had the First Amendment theory, and that lost, and you appealed on that theory.

Mr. Marcelle: Yes.

Justice Ginsburg: Now, it would seem to me if the other issue was, was not aired, we should not decide it in the first instance.

Mr. Marcelle: Justice Ginsburg, there was cross motions for summary judgment.

We moved for summary judgment and the school district moved for summary judgment, and to defeat our motion for summary judgment, they had the burden of proving a compelling State interest and that the censorship forum, from the forum was the least restrictive means to achieve that interest.

Justice Scalia: Mr. Marcelle, when the, when the State refuses somebody something to which he is entitled for the wrong reason, and the case is appealed up here, and we say that reason was wrong, do we normally, if the State comes in and says oh, we could have, we could have done it for another reason, you know, not because of his race.

We might have done it for some other reason, do we normally remand to give him a second bite?

Aren't they stuck with the reason that they gave?

Mr. Marcelle: Well, I think, they are stuck with the record as in any trial, on any appeal, you could raise new issues and new grounds and could have a new trial.

Justice Scalia: This school said we will not let you conduct this service, period.

Mr. Marcelle: At any time.

Justice Scalia: At any time because we do not allow religious services in the school, and that's the basis on which it was argued below, as I understand it.

Mr. Marcelle: That's correct.

Chief Justice Rehnquist: Did the Court of Appeals rely on the establishment clause in its decision?

Mr. Marcelle: No, it did not, Mr. Chief Justice.

We were briefly, my recollection, questioned about it, but the Second Circuit did not rest its decision on that grounds.

Justice Kennedy: And in a trial court, the school district made no distinction in its summary judgment motions or in its answer based on the fact that this was immediately after school?

Mr. Marcelle: I'm not sure--

Justice Kennedy: The school district said it could bar these, it could bar these meetings at any time of day?

Mr. Marcelle: --That's correct.

And it's--

Justice Kennedy: And it made no, and it made no distinction between right after school or an hour after school or two hours after school?

Mr. Marcelle: --That's correct, Justice Kennedy and in fact on the joint appendix at G 4 and I believe it's paragraph 13, it's the superintendent's affidavit where he is basically says that your speech is too religious to be using the forum.

Justice O'Connor: Mr. Marcelle, does State law require this school district to open its facilities after school to other groups?

Mr. Marcelle: No, Justice O'Connor.

Justice O'Connor: This is a decision made by the particular school.

Mr. Marcelle: Yes.

New York State education law grants the power to the local school boards.

Justice O'Connor: But does not require it.

Mr. Marcelle: But does not require it.

Justice O'Connor: And is it clear under State law that the school could adopt whatever provisions it wants for its opening of the school?

It could choose to limit it to athletic purposes at certain hours and on certain days?

Mr. Marcelle: Yes.

What State law sets a ceiling for what school districts can do, and they can go, the floor goes to not even opening the forum and they can go anywhere in between.

Here, Milford chose to, the maximum possible extent allowed under, under--

Justice O'Connor: So it would be entirely open, whatever this Court chose to do for the school to revamp its policy for hours and days and purposes?

Mr. Marcelle: --Absolutely, Justice O'Connor.

New York grants them broad discretion and the school board has that ability to exercise that discretion.

Justice Stevens: May I ask, what is the, is there a State statutory ceiling you say?

In other words, is there a State limit on how much religious activity they could permit?

Mr. Marcelle: Yes, Justice Stevens.

It's State--

Justice Stevens: Are you challenging both the school board's regulation and the State statute?

Mr. Marcelle: --They gave both reasons for denial, and--

Justice Stevens: And I'm asking, are you challenging--

Mr. Marcelle: --I'm sorry, yes, Justice Stevens.

We are challenging both.

Justice Stevens: --So you are contending the statute is unconstitutional?

Mr. Marcelle: The statute to the extent... Justice Stevens, actually it requires a little explanation under New York law.

It really isn't that, the history in New York law is a little more entangled.

The State legislature had opened up it for these broad purposes if the school board so chose.

In 1978, there was a mid level appellate court in the State that was decided prior to Murgens that said because the State legislature didn't specifically include religious purposes in the statute, the court interpreted as it meant to exclude religious purposes, although the State doesn't, the statute doesn't say that, that has become part of the judicial interpretation of the statute, so I don't want to mislead you and it's contained in the statute, Justice Stevens.

Justice Souter: Well, I want to know how that explanation that you just gave us fits with, with what you were telling Justice O'Connor a moment ago.

If you win this case, and the school board says we want to revamp our regulations, and our regulations are going to be that although religious purposes do not exclude a group from, from use of the facilities, religious worship does, and we are going to draw the line there, or they might say we are going to draw the line against any use that could be regarded reasonably as an establishment clause violation when young kids are involved.

Would you take the position then that because you think the, the New York statute is unconstitutional that the school district could not draw that restriction or either of those restrictions that I have just described, and which if the statute is unconstitutional does it render the school district in fact, in this respect, does it render the school district incapable of drawing any distinction whatever that has any reference to religion?

Mr. Marcelle: I believe Widmar answers that question, Justice Souter.

Justice Souter: I would like Marcelle to answer that question.

What position, what's your argument?

Mr. Marcelle: My argument is religious worship is inherently a religious viewpoint.

In other words, when I say hail Mary full of grace and say amen, that's my internal attitude.

If I say ha ha, I'm allowed in the forum, but if I say amen, I'm excluded and it seems to me what makes one worship and the other not worship is my internal attitude.

Justice Souter: No.

But... is, you are saying that the State cannot exclude what's going on... that the district could not exclude what's going on here.

But is it because the statute is itself unconstitutional in drawing a religious distinction?

Mr. Marcelle: No.

I believe it's unconstitutional under the free speech clause.

That is, the State cannot exclude religious viewpoints from a forum that otherwise speaks on the subject matter.

For example, in this case--

Justice Souter: Okay.

No.

I don't, I don't mean to cut you off, but I just wonder, you answered Justice O'Connor's question, as I recall, by saying yes, the State could go back and revamp the policy and draw it more narrowly, and I understood you to say, or to imply that if it wanted to draw a policy that says no religious worship involving young kids or something like that, that, that would be open to it and I want to know whether your position on the statute leads you to say no, the school district would not be, even without State, would be without State authority under State law even to do that.

Mr. Marcelle: --My position is that the First Amendment prohibits drawing that distinction, if that, whatever you called the worship fits within the otherwise religious neutral boundaries of the forum.

So, for example--

Justice Souter: But is that because the State statute is simply inoperative to give the school districts the authority to redraw a policy more narrowly?

Mr. Marcelle: --No.

I think the limitation on the school board is the First Amendment to the United States Constitution.

Justice Souter: Okay.

Justice Ginsburg: If there were to be an action, let's say you prevailed in this action, there would be an action by parents of a 6 year old attending this school, that would challenge the allowance of this group on establishment clause grounds, that would in no way be foreclosed by this, this decision if the issue is there, but not decided by this case, is that right?

Mr. Marcelle: I guess that would be correct, Justice Ginsburg.

I mean, I guess cases can't stand for propositions which aren't decided in them, and I think that's--

Justice Ginsburg: So the whole question one way or another of whether elementary school students are differently situated than high school students or college students would be open in any case?

Mr. Marcelle: --Depending how the court wrote the opinion, yes.

Yes.

Yes, Your Honor.

Justice Scalia: Well, I mean the establishment clause has been presented in this case at least as a defense, that is to say, it has been alleged that one of the reasons that the State could do this is because of the establishment clause problems that would arise were they to do it, and it is, it is quite possibly for this Court's opinion to address that establishment clause argument as well, isn't it?

Mr. Marcelle: I would assume it's quite possible, Your Honor.

Justice Ginsburg: I'm confused.

I thought you said it wasn't raised.

Mr. Marcelle: I'm sorry, I said that, excuse me, Justice Ginsburg.

I think what I was trying to say in response to Justice Souter's question was they hadn't met their burden.

It's different between, I think, not raising it and not meeting the burden of proof of showing a compelling stage.

Justice Souter: But wasn't there a position below, maybe, maybe I misunderstood what you were saying, but I thought their position below was that any use for a religious purpose, any, as you were putting it, any expression of a religious point of view on the subjects that might be discussed could be excluded and that was the reason for excluding this.

Is that so?

Mr. Marcelle: That's correct, Justice Souter.

Justice Souter: And do you, do you believe that, that if we say no, that's too broad a ground, that they would then be foreclosed from redrawing their policy on a narrower ground based upon avoidance of an establishment clause problem if they do allow this, would they be--

Mr. Marcelle: I'm not sure.

Justice Souter: --Would they be precluded?

In other words, they are saying okay, we can't paint with a broad brush.

We are going to paint with a narrow brush.

We are going to say this would be a violation of the establishment clause to allow a Sunday school kind of worship for young school kids immediately after school, we won't allow it.

Would that in your judgment be precluded by the judgment in this case?

Justice Kennedy: Assuming you know what we are going to say.

Mr. Marcelle: I guess that's--

Justice Kennedy: I take it, I take it based on your position it's open to us to say that it's a violation of the establishment clause for the State to scan and to review every single event, every single class in order to purge it of religious content; that that is itself is an establishment violation.

That's open for us to say, so if we said, that would certainly foreclose the line of questioning that, the suggestions that Justice Souter is making about further lawsuits.

Mr. Marcelle: --Absolutely.

And moreover, Justice Kennedy, I think there is also this problem.

This is a broad community forum, and parents, it would seem to me the establishment clause was crafted to defend the rights of the religious people to participate in broad community forums and to exclude Andrea Fournier from a forum because of her religion would seem to be the very value that the establishment clause was, was crafted to defend, so if she wears her daisy scout uniform, for example, she is okay to come in, but if she wears her Good News Club uniform, she is not.

And it, I think not only the free speech clause protects her right to meet under those circumstances, but not to be excluded from a broad community forum and the parents not to be excluded from the broad community forum also is protected by the establishment.

Justice Souter: All right.

I want to make sure I understand your answer.

You are saying that if you win this case based upon the ground that the exclusion broadly of religious viewpoints is unconstitutional, is it your position that if they then redraw the policy more narrowly and say we are going to exclude Sunday school type of meetings held on the school grounds immediately after school, is it your position that they would be foreclosed by the judgment of this Court in this case from doing that?

Mr. Marcelle: The way you state it, Justice Souter, absolutely.

Justice Kennedy: Well, not if we rely simply on, on, on the First Amendment speech clause.

That, that's another option that we have.

We say it's simply violative of the First Amendment speech clause.

Chief Justice Rehnquist: It's almost impossible for counsel to say what the effect of an opinion is going to be.

Justice Scalia: Trust me, Mr. Marcelle.

Chief Justice Rehnquist: Also principles of res judicata involved that anything that was litigated or might have been litigated in a suit is barred.

Justice Scalia: Trust me, Mr. Marcelle, we can write this opinion so it does almost nothing.

Mr. Marcelle: Mr. Chief Justice, may I reserve the balance of my time?

Argument of Frank W. Miller

Chief Justice Rehnquist: Very well, Mr. Marcelle.

Mr. Miller, we'll hear from you.

Mr. Miller: Mr. Chief Justice and may it please the Court, the issue before this Court today is whether a public school district may lawfully exclude a religious group from conducting adult led, adult sponsored and adult initiated prayer and worship services and religious instruction immediately at the end of the school day where these activities involved the youngest children.

Justice O'Connor: Well now, what difference does adult sponsored make?

I assume the Girl Scout meetings are adult sponsored.

What's the purpose of emphasizing that?

Mr. Miller: The purpose of emphasizing that--

Justice O'Connor: All these things are adult sponsored.

Mr. Miller: --Well, Justice O'Connor, except for the fact that we have the Equal Access Act which we submit that if Petitioner's position is accepted in this case, the Equal Access Act will become meaningless because then you will be able to have adult led and adult sponsored religious activities occurring in a school which the Equal Access Act would prohibit.

Justice O'Connor: What Equal Access Act are you talking about?

Mr. Miller: I'm talking about the Equal Access Act that was discussed by this Court in Murgens and--

Justice O'Connor: The New York law?

Mr. Miller: --I'm sorry?

Justice O'Connor: You are referring to some New York law?

Some Federal law?

Mr. Miller: Yes, Justice O'Connor, the Federal statute known as the Equal Access Act.

Justice O'Connor: Is that before us in this case?

Mr. Miller: No, Justice O'Connor.

Justice O'Connor: I didn't think it was presented to us on that basis.

Mr. Miller: No, it is not.

It is that, it is that the Federal law would allow, the Equal Access Act would allow adult, would not allow adult led or adult sponsored religious worship and activity in a school under any circumstances.

Whereas, if it were student initiated and student led at the secondary level, that would be permissible under Federal law and those restrictions have been upheld by this court in Murgens.

Chief Justice Rehnquist: Right.

But what are the grades covered at the Milford Central School?

Mr. Miller: Mr. Chief Justice, it's kindergarten through sixth grade, so it's actually ages 5 to 12.

Chief Justice Rehnquist: Well, it would be unusual, wouldn't it, for any meeting after school not to have an adult leader?

He wouldn't have a bunch of fourth graders in there talking by themselves.

Mr. Miller: Oh, absolutely.

Oh absolutely.

Absolutely, Mr. Chief Justice.

I emphasize that point only because of the fact that under Federal law under the Equal Access Act, this activity wouldn't be permitted.

Justice Stevens: May I just ask on the equal access, I don't really have it in mind.

Does the Equal Access Act not require or does it prohibit the activity you are describing?

Mr. Miller: It would prohibit the activity.

Justice Stevens: It prohibits it.

Mr. Miller: At the elementary level, and it would prohibit the involvement of adult supervision.

Justice Scalia: Are you sure about that?

I, I thought it would simply not compel it.

It doesn't cover, it doesn't cover it except, you know, student led activity.

Mr. Miller: Justice Scalia, my understanding of the Act was that it specifically prohibited adult led and adult sponsored activities at the elementary level, which is the situation.

Justice Breyer: Wow.

Well, then it would raise the same problem as this raises?

So my question would be, we have a fairly... no prayer in school is a controversial policy, but it has one virtue.

The court's opinion is, the virtue is it's clear.

Mr. Miller: That's right.

Justice Breyer: All right.

So the rule is as the courts interpreted it, that school activities cannot involve prayer.

Well, isn't the corollary of that where there isn't school activities, it can involve prayer, and it can involve religious activities, and here we are after school, so the same clear rule would say you can't pray in school, but after school is different, and you can't discriminate against religion after school.

Now, I put that because that's, I'm putting it squarely.

Mr. Miller: Right.

Justice Breyer: I want to hear your answer.

Mr. Miller: Yes, sir.

Justice Breyer: And, and my, my thought is aimed at the clarity of such a rule that ordinary people can understand, in light of the basic principles underlying establishment on the one hand and free speech on the other.

Mr. Miller: Yes, Justice Breyer.

Justice Breyer, we contend that this is, and I believe the parties have stipulated that this is a limited open forum.

And what we have attempted to do is consistent with State law we have attempted to exclude the subject matter of religion.

Justice Breyer: Exactly.

And the question is, after school--

Mr. Miller: Correct.

Justice Breyer: --People can talk about any subject matter, but not religion.

That sounds to me as if you are discriminating in free speech terms against religion.

And now my question is, why isn't that contrary to the Constitution?

It's after school.

It's not a school activity.

And it doesn't help me to talk about open forums or not open forums or whatever.

I want, I want to know what, what the principle is, what the theory is?

Mr. Miller: Well, the theory is, Justice Breyer, that we have set limits to exclude on a reasonable basis certain activities from occurring in the school.

Just as we exclude partisan political activities.

We exclude commercial activities.

And we exclude various other activities, the school system has made a decision that it wanted to exclude this activity from its forum.

Now, consistent with a decision, for example, in Cornelius vs. NAACP, where the issue of partisan political speech was excluded from a limited open forum.

We have acted similarly in this circumstance.

Because of concern about some of these establishments.

Chief Justice Rehnquist: What, what do you do about the, our Lamb's Chapel decision?

It seems to me that the Court of Appeals here paid very little attention to Lamb's Chapel.

Mr. Miller: I'm, I'm well aware of that, Mr. Chief Justice.

But I think that in part, and I, I'm not certain why the Second Circuit wrote the majority opinion it did, except for the, I can offer the Court this, and that is that in footnote two of the majority opinion, this Court indicated very clearly that it was not addressing the issue of worship services and Sunday school.

Justice Souter: Well that... yes, but as I understand it, as it has been represented to us, that wasn't the basis for the school district's exclusion here.

The basis, as I understand it, was what you just told Justice Breyer a moment ago, that the district had chosen to exclude religious discussion from those which were, were open.

And that's, that's a very different criterion from saying, we're excluding the use of the facilities just for religious worship.

Which was it?

Mr. Miller: Well, Justice Souter, I think perhaps the actions of the school district have been somewhat mischaracterized.

I believe that there is a letter in the record from the superintendent that had indicated precisely what they were excluding, and the letter from the superintendent to the Reverend indicated that uses consistent with Lamb's Chapel would be permitted, but that religious worship would be excluded under the description of this forum.

So it was not excluded because of a viewpoint.

It was excluded because the entire subject matter of religious worship was excluded from the forum.

Justice Kennedy: Where is that letter in the record?

Mr. Miller: Yes, sir.

Your Honor, please look at the joint appendix H 1 to H 2.

There is reference there to the Lamb's Chapel decision of this Court indicating that the viewpoint, the viewpoint was... was not what was being excluded, rather it was the religious worship that was being excluded.

Justice Souter: And was it religious worship which was the ground that you... you chose to stand on in the district court and in the argument before the Second Circuit?

Mr. Miller: Justice... Justice Souter, we advanced both.

For example, an examination of our answer would reveal that we raised the establishment clause as an affirmative defense.

But I believe it's the next to the last page of the district court opinion, and I could find it if the Court wishes.

The district court, for example, concluded that because we had found that the limited open forum was properly created and properly limited, it did not need to reach our establishment clause arguments or the establishment clause issue.

Justice Scalia: On that, you think this letter is correct that hearing a Bible lesson and memorizing Scripture is the equivalent of religious worship?

Mr. Miller: Justice Scalia, yes, sir, I do.

Justice Kennedy: And have you memorized the Declaration of Independence or the preamble of the Constitution, that's something other... what is that?

That's not thinking?

That's not training of any kind?

Mr. Miller: Justice Kennedy--

Justice Kennedy: That's not, that's not imparting a view on what our history means?

Mr. Miller: --Oh, of course it is.

Justice Kennedy: We, we don't want you to know... be able to recite the First Amendment?

Mr. Miller: We don't certainly contend that that was a full description, Justice Kennedy, of everything that was occurring.

Rather we have a full record that the district court and the court of appeals in both instances concluded that this was indeed religious worship.

Justice Breyer: Well, suppose it was.

Mr. Miller: Yes, sir.

Justice Breyer: And I'm just putting this to get your response.

It doesn't necessarily reflect what I'm thinking.

But social events, it doesn't say social discussion.

Civic events, recreational events.

Entertainment events.

I guess that includes chess club, dances.

Mr. Miller: Yes, Your Honor.

Justice Breyer: It includes all kinds of activity.

Mr. Miller: That's correct.

Justice Breyer: So suppose you were to say any activity is fine, just one is not.

Religious activity is not.

Mr. Miller: No, sir.

Justice Breyer: After school.

Now, my question is given Lamb's Chapel, why would that be constitutional?

Mr. Miller: Well, Justice Breyer, the premise of the question operates under the assumption that the only thing that we excluded was religious, were religious activities, I believe.

Justice Breyer: Well, that's what seems to be what you're saying.

What you excluded here, there is a separate section and it says the separate section, use for nonreligious purposes.

It says school premises shall not be used by any individual or organization for religious purposes.

Mr. Miller: Yes, sir.

Justice Breyer: So it seems to me that what you have on one side of the page is use it for anything, and on the other side of the page, there is an exception, religious purposes.

Now, my question, which has been throughout is, how do you square that with Lamb's Chapel, i.e., since its after school, and isn't a school activity, why isn't it discrimination against religion under the First Amendment?

Mr. Miller: Your Honor, we have excluded the entire subject matter of religion as we--

Justice Breyer: Well, doesn't that make it worse?

Every other subject matter is there.

Mr. Miller: --No, Your Honor, because that is not, that is, in fact, not the case as this particular forum was created.

This particular forum also excluded partisan political speech and various other activities that I believe we enumerated in our brief and I think are enumerated elsewhere in the record, particularly the deposition of the school superintendent identifies a number of those.

Chief Justice Rehnquist: But, but it didn't exclude discussions of morality... the Boy Scouts, the Girl Scouts teach that.

Mr. Miller: Yes, sir.

Chief Justice Rehnquist: What it really excluded was a discussion of morality that had a religious perspective.

Mr. Miller: Well, Your Honor, that... the facts in the case really don't spell that out.

And in fact, there is no development of the record in terms of what precisely the Boy Scouts did, other than recite the Boy Scout motto.

In fact, the record doesn't reflect that they actually held their typical club meetings on school premises.

What they actually held on school premises were leadership meetings and not actual Cub Scout--

Chief Justice Rehnquist: Well, the very oath of the Boy Scouts is moral.

Mr. Miller: --Yes, Your Honor.

And our position has been that that's essentially an incidental mention of those issues.

It is different from or distinct from religious worship.

Chief Justice Rehnquist: And so someone who spoke of, wanted to teach about how to be a good citizen from a particularly, especially secular point of view could not have done so under your program?

Mr. Miller: Your Honor, they could have.

I believe that--

Chief Justice Rehnquist: They could have done it.

Mr. Miller: --Yes, sir.

Chief Justice Rehnquist: But someone who wanted to speak about exactly the same subject from a religious point of view could not have?

Mr. Miller: I don't... I don't agree with the Chief Justice's statement of the question.

Your Honor, we would have allowed them to express their viewpoint on a secular subject, I believe consistent with Lamb's Chapel.

We would not have, however, permitted religious worship services, which is essentially what this was.

Chief Justice Rehnquist: You say this is essentially a religious worship service.

Now, I think people might quarrel with that.

You can have, I think one of my colleagues here described it as more like Sunday school, and I think that's probably an accurate description, but it certainly isn't religious worship in the sense that most people think of it.

Mr. Miller: Well, except for the fact, Your Honor... Your Honor that the Sunday school is generally the way that religious worship is presented to children of this, of this age group.

They are typically not required to attend the full service and so forth.

They typically attend a Sunday school type service.

Justice Scalia: Another way to put it would be that children of that age don't engage in religious worship.

They go to Sunday school.

Mr. Miller: Well, Justice Scalia, they go--

Justice Scalia: I mean, just because they go, you are going to suddenly convert Sunday school into a Mass?

Mr. Miller: --No.

Justice Scalia, except for the fact that what they do is that they, they engage in an activity that's age appropriate, and for those children--

Justice Scalia: That's right.

Justice Souter: Don't they pray--

Justice Scalia: --Religious worship is not part of it.

Justice Souter: Don't they pray?

Mr. Miller: --Yes, sir, they do.

Justice Ginsburg: May I ask to you clarify now something that Mr. Marcelle addressed as well.

You have said that you raised the establishment clause as an affirmative defense.

Mr. Miller: Yes, Your Honor.

Justice Ginsburg: And that the district court said I'm not going to deal with it because I decide the case in your favor on another ground.

Mr. Miller: Correct.

Justice Ginsburg: So it was raised, you raised it, but it wasn't decided.

Mr. Miller: That's correct.

Justice Ginsburg: It seems to me that that's got to remain open.

Mr. Miller: Yes, Your Honor, I believe that it does.

I believe it's very much involved in this case.

Justice Scalia: Your position is that saying a prayer is religious worship and I assume then that any group which sought to meet on your school's property which opened its meeting with a prayer would be excluded, and you think that's in accord with Lamb's Chapel?

Mr. Miller: Religious worship would be excluded, Justice Scalia.

Justice Scalia: And you said in response to Justice Souter that saying a prayer is religious worship, right?

Mr. Miller: Justice Scalia--

Justice Scalia: Right?

So no group admitted to this school program can say a prayer to open its meeting?

Mr. Miller: --I wouldn't necessarily say that, Justice Scalia.

Justice Scalia: You just did say it.

Mr. Miller: Well, I... the point I'm getting across is that the activities of the Good News Club were more than merely reciting one prayer.

There was much more involved in that which is fully developed in the record, and those activities were much more religious and much more in the nature of a religious worship service.

Justice Scalia: They were more religious, but they were not necessarily the same thing as a church religion... as a church worship service, teaching the Scripture, teaching what the Scripture has to say about morality.

I mean, I think it's a great distortion to call that a worship service.

Mr. Miller: Justice Scalia--

Justice Scalia: Even if you throw in a prayer or two.

Mr. Miller: --Justice Scalia, for children of this age group, that is the religious worship service that they would typically engage in.

Justice Breyer: Well, if that's so--

Justice Souter: --And that's what you want to litigate, if on the broad ground you lose, you say we have raised that, and we should be allowed to litigate that go back to district court, is that it?

Mr. Miller: I'm hoping we don't lose this case, Justice Souter.

Justice Souter: I recognize that, but you're saying, whether you agree with Justice Scalia or not, you're saying we want to litigate that in the district court and--

Mr. Miller: I believe that we've preserved it and fully developed the record with respect--

Chief Justice Rehnquist: --Well, you did litigate it, didn't you?

Mr. Miller: --Except for the fact, Mr. Chief Justice, that it was not ruled on specifically.

The district court said because we've concluded that your limited open forum was constitutional under Second Circuit precedent, we didn't need to reach the establishment clause argument.

It was raised.

It was not, however, ruled on previously by the district court.

Justice Breyer: Is that the right way, then, to deal with what I would see as the difficult issue in this case, the difficult issue being suppose it's a total prayer service?

Mr. Miller: Yes, sir.

Justice Breyer: Imagine that it is.

Mr. Miller: Yes, sir.

Justice Breyer: Now, is the way to get at that problem, if assuming there is a problem, that either a total prayer service would be unlawful, either you have... either it would violate the establishment clause or it wouldn't.

Mr. Miller: Correct.

Justice Breyer: If it doesn't violate the establishment clause, you lose this case a fortiori.

If it does violate the establishment clause, then the way to get at it is through litigating the establishment clause issue.

I'm trying to figure out.

That's been the point of my question.

I'm trying to figure out how to do this on the assumption that this is pure prayer, which I know it isn't, because the other alternative you could argue whether it is or isn't, but assume it was, how do we get at that issue?

Mr. Miller: Well, several ways.

Number one, I think that even if it's not a... technically an establishment clause violation, I think the school district had a reasonable basis to conclude that it might potentially be disruptive, it might potentially be divisive of the community to allow this type of utilization of the school building, and out of concern that perhaps religions which did not predominate in the area might be unrepresented and unable to use the school facility for similar purposes.

Justice Scalia: This is divisive in the community?

I don't understand.

What would the community get upset about?

I don't understand.

Mr. Miller: Well, Justice Scalia--

Justice Scalia: You would let all religious groups do this, right?

Mr. Miller: --Presumably, if you ordered it.

Justice Scalia: Religious groups that didn't want to do it would get upset that other religious groups did want to do it?

Mr. Miller: Well, actually, Your Honor--

Justice Scalia: You must have a very divisive community down there.

I'm glad I don't live in New York anymore.

Mr. Miller: --Actually it isn't terribly divisive, Justice Scalia.

What we are concerned about is, is that there may be religious groups that do not have a substantial representation in this small town community, and that the majority religion, such as Reverend Fournier represented would be able to run a Good News Club, but the other groups that didn't have the numbers or the personnel couldn't run a similar club, and that would show a favoritism to this particular club.

Chief Justice Rehnquist: Why would it be a favoritism?

I mean, presumably if they met the standards for, if you have to have a certain number of people come to the meeting, any religious group that met that standard would have been granted the same right, wouldn't they?

Mr. Miller: Yes, sir.

But it's--

Chief Justice Rehnquist: Well, then what you're saying basically, it's kind of a heckler's veto, that if people don't like what the school is doing and are unhappy about it, that is a reason for excluding religion.

Mr. Miller: --I don't believe that to be the only basis upon which we've determined that it is appropriate to exclude this.

We have also relied, to some extent, upon the mandate of State law that the school is bound to follow, and may I point out, please, that in the complaint there is no challenge to the constitutionality of section 414 of the education law.

That relief was not asked for at the district court, it was not asked for at the court of appeals, and it is not, in my judgment, at least from what I read in the complaint, it is not before this Court.

Justice Stevens: No, but are you contending that the State statute required this policy?

Mr. Miller: Justice Stevens, I believe that that's essentially what the State statute mandated.

The State statute, education... New York education law 414 prohibited use of a school building for religious purposes.

Justice O'Connor: Well, but you don't say that the school couldn't adopt some different policy and say we're not going to allow any use of our buildings at all?

Mr. Miller: That is correct, Justice O'Connor.

Justice O'Connor: The State law does not prohibit that?

Mr. Miller: That is correct.

Justice O'Connor: And the school could say, we're only going to allow after school use for athletic purposes.

Mr. Miller: Correct.

Justice O'Connor: Or we're only going to allow it after 6 p.m..

Mr. Miller: Correct.

Justice O'Connor: Yeah.

It only sets a ceiling, whatever that State law is.

Mr. Miller: That is correct, except one of the things that they do not permit, along with other prohibitions, such as a political... partisan political activities, commercial activities, and so on.

One of the other excluded areas is a religious activity.

Justice Scalia: Well, Mr. Miller, you can't have it both ways.

If you say that the State law requires this--

Mr. Miller: Yes, sir.

Justice Scalia: --then certainly the constitutionality of the State law is at issue in this case.

There is no difference whatever between saying that what the State law requires is unconstitutional and saying that the State statute is unconstitutional.

That's one and the same.

You can't have it both ways.

If you say the State statute requires this, we are passing upon the constitutionality of the State statute, isn't that right?

Mr. Miller: Yes, sir.

Just as you were in Lamb's Chapel, but the same statute was before the court in Lamb's Chapel, and--

Justice Scalia: By the way, the Federal Equal Access Act does not prohibit what was done here.

It does not contain any prohibitions.

It just says that the requirements which this Act imposes--

Mr. Miller: --Yes.

Justice Scalia: --are not imposed upon elementary schools--

Mr. Miller: At the elementary level.

Justice Scalia: --That's right.

Mr. Miller: My understanding is it was a very vigorous debate about whether--

Justice Scalia: It doesn't prohibit doing it at the elementary level.

It just says Federal law does not require you to do it at the elementary level.

Mr. Miller: --That is correct.

That is correct.

The... we contend that the establishment clause argument is very much involved in this case.

We did raise that as an affirmative defense in our answer, and we contend that if this particular use is permitted, we will have Sunday school on a Tuesday in a public school occurring at 3 o'clock immediately upon the end of the official school day.

Justice O'Connor: Well, now, just a minute.

I thought we just went over this.

There is nothing in the world that prohibits the school from saying we're not going to have any activity before 6 p.m. or 3:30 or 4:00 or 5:00, whatever it is.

Mr. Miller: Correct.

Justice O'Connor: You told me the school can do that.

Mr. Miller: The school can do that.

Justice O'Connor: So why would you complain about 3 o'clock?

That must be something the school itself set up.

Mr. Miller: That is correct, Justice O'Connor, it is something that the school set up and allows, but they didn't specify specific times, and when they examined this particular circumstance, they determined that it was religious worship and chose not to exclude it... or, excuse me, chose to exclude it.

Justice Kennedy: But--

Justice O'Connor: --But that's all that's before us is the religious worship.

The school obviously can set the hours and the days and the opportunities for all these groups.

Mr. Miller: That is--

Justice Kennedy: And your position is they can't do it at any time of day, and that's the way the case has been presented to us here.

Mr. Miller: --That is correct.

That is correct.

Justice Scalia: And the school, in fact, never complained about the time, none of this correspondence said the problem is you're doing it right after school and these other kids will think that... right?

That was never in any of this stuff?

Mr. Miller: That is correct, Justice Scalia, the original denial was based on the fact that it was religious worship, not based upon the specific time of day, that is correct.

Justice Kennedy: And you defend that position?

Mr. Miller: Yes, sir, I do.

I believe we have the right to limit the forum to certain activities that the school believes have a reasonable basis consistent with the mission of the school system, and under the circumstances, as they have excluded other activities, such as political activities and commercial activities and similar activities, they are permitted to exclude these activities as well.

Justice Breyer: Now, why would it violate the establishment clause?

I mean, let's take an extreme case, a local church, which doesn't have a building, says, we would like to use the school for worship services two or three times a week at 4:00 in the afternoon to 6:00, all right?

So they do it.

And the school district says, no, this is a school, it's not a church.

Mr. Miller: Correct.

Justice Breyer: Even after school.

Now why, I want to understand why... it may well.

Why does it violate the establishment clause, in your view?

After all, you could turn it into a gymnasium.

That's not the... this is not a discrimination point.

This is an establishment point.

Mr. Miller: Correct.

Justice Breyer: Why?

Mr. Miller: Because under those circumstances that you just posit, I believe that the school is then lending support to a particular religious exercise or a particular religion.

Under the circumstances of this particular case, our case, we have an increase in active attendance at the meetings, we have the school being utilized in effect as a church.

And the same activity was conducted only months earlier at the church.

And under the circumstances, we submit, to permit the utilization for a church service, for a worship service, would involve the school in endorsing and supporting the that particular religion.

Justice Scalia: But the state provides, for example, crossing guards on Sundays at church services, and that is not thought... to facilitate people going to the church service, there's no other reason for it.

So long as it provides crossing guards wherever else there is need for crossing guards, this is not considered to be an establishment of religion.

Mr. Miller: That's correct, Justice Scalia.

Justice Scalia: So why if public facilities... and I don't... I know many schools that do it.

If they're willing to let their facilities be used for any public purpose--

Mr. Miller: Uh huh.

Justice Scalia: --why must they exclude a religious purpose so long as they're doing it evenhandedly, all religions, all other purposes, just like crossing guards?

Mr. Miller: The example of the crossing guards you gave, I presume, is on a public street.

That would be an open forum where restrictions and limitations would be very difficult to justify.

In the case of a limited open forum, such as the school district where you've previously... this Court has previously indicated we have to have special sensitivity to the age and so forth of the children, we believe that it's appropriate to make those judgments to exclude from the forum those activities that the school officials may believe are not inconsistent with the mission.

Justice Scalia: On Sundays?

On Sundays and after the kids are gone?

The building's just lying there.

Actually the community can make money, it rents it out to any group that wants it.

The church needs it.

Mr. Miller: Well, they wouldn't... if they were doing it for a for profit purpose under New York law, that wouldn't be permissible.

Justice Scalia: Oh, you can violate the establishment clause for money?

Mr. Miller: Well, no, no, it wouldn't be a permissible use was my point.

It would not be permitted under the school use policy or under New York education law 414.

It's simply not permitted.

Justice Kennedy: To prohibit the use of public facilities for religious purposes shows the State is neutral as to religion, is that your point?

Mr. Miller: Justice Kennedy, I believe that we are required to be neutral and permit the schoolhouse to be used as a house of worship would violate, I believe, the principle of neutrality.

Justice Souter: Why would it do so if, unlike this case, there's no particular involvement of schoolchildren involved, and the district allows the, let's say the auditorium to be used for a meeting of the Elks, for a meeting of the Veterans of Foreign Wars, and the Baptists have had their church burned, and they want to use it.

Why would... what would the theory be that would explain why it would be a violation of the establishment clause to let the church group use it on the same terms as the VFW and other secular organizations?

Mr. Miller: Is Justice Souter's question in reference to this specific record or is this a hypothetical?

Justice Souter: No, no, I'm going back I think to Justice Breyer's question, and I understood you to answer his question in such a way that would say, yes, it would, in my example, it would be a violation to let the church group use it at the same... on the same terms as the VFW, and I don't understand what your reasoning is.

What's the establishment clause theory that leads you to say that?

Mr. Miller: Because you would be permitting then a schoolhouse to be used as a house of worship.

In the case of... in our particular case, at 3 o'clock there are lots of other educational activities going on.

Justice Souter: Well, if that was the case, in... the facts in Widmar, then, would have been an establishment clause violation because in Widmar you had a state university property that was being used for purposes of worship, so that would have violated the establishment clause.

Mr. Miller: Well, Justice Souter, I believe that Widmar is a totally different case.

Number one, it's an open forum as opposed to a limited open forum.

Justice Souter: But you're talking about the First Amendment, and now we're talking about the establishment clause.

I take it, then, that given your answer to my question and Justice Breyer's, you would say that the student worship service in Widmar on university property was a violation of the establishment clause.

Mr. Miller: I would have to take the position that with respect to that forum which had been open for all purposes--

Justice Souter: We're not talking about forum analysis.

We're talking about establishment clause analysis.

Mr. Miller: --Uh huh.

Yes, sir, I understand.

Justice Souter: In other words, I'm going from the speech clause to the establishment clause.

Was the Widmar worship service on public property a violation of the establishment clause?

Mr. Miller: This Court apparently held it wasn't, although you looked at it as a free speech case, so presumably--

Justice Souter: Yes.

Mr. Miller: --in that particular matter you allowed it.

In this circumstance--

Justice Ginsburg: In this particular district, this school district, we're dealing with elementary grades?

Mr. Miller: --Correct.

Justice Ginsburg: Is there any practice with respect to high school or public colleges in that area?

Do they have student groups that can meet for religious purposes as well as all others?

Mr. Miller: Justice Ginsburg, that is not reflected in the record, and I'm not certain of the answer to that.

I believe, however, that the record reflects that there were no other religious uses that went on at this particular school, but the record is not developed on that.

Justice Scalia: Does the record show that there are a lot of other children who were hanging around the school while this service is conducting... conducted?

Is that in the record?

Mr. Miller: It is not fully developed, Justice Scalia, but I believe there is some evidence of that, yes, sir.

Rebuttal of Thomas Marcelle

Chief Justice Rehnquist: Thank you, Mr. Miller.

Mr. Marcelle, you have five minutes remaining.

Mr. Marcelle: If the Court... if it would please the Court, I have two quick points to make on rebuttal.

First, I believe there is a slight misstatement of the record.

At the cert petition, appendix H, page 6, it describes Milford School as a housing... building of both elementary, junior high, and high school.

The school building contains grades K-12, not just elementary school.

Second, with respect to the Equal Access Act, I believe Justice Scalia is right, it is only a mandate that Congress passed it.

If a high school did certain things, they would have to allow certain other high school groups.

There is nothing in the statute that makes it a prohibition to it, even in the absence of the law, to allow other groups.

Justice Breyer: Can I ask as long as... I would like you to--

Chief Justice Rehnquist: --This is on rebuttal.

Justice Breyer: I thought he was finished.

Do you have something else?

Mr. Marcelle: No, I'm finished, Justice.

Justice Breyer: I thought he was.

If you have an extra minute, I'd like just to get your view on what I'm finding is the most difficult part of this, which we may not reach.

To take the opponent's point on the establishment clause, suppose the city hall says every Sunday we can use the city hall as a church, we'll let church groups use it.

So every Sunday the city hall becomes a church.

Does that violate the establishment clause?

Mr. Marcelle: Not if it has a broad forum.

It would violate the statute--

Justice Breyer: No, what they'll say is any group can use it.

Now, what happens is that every Sunday the city hall becomes a church and all the community goes there and gathers and prays.

Does that violate the establishment clause?

Mr. Marcelle: --I don't believe so, Justice Breyer.

I believe as long as the forum is open, the... and the State is neutral, that a reasonable observer would be aware of the policy and the history and the context of the situation and wouldn't view that the State was endorsing the religious ceremony, but, rather, the adherents who chose to avail themselves of the forum, the endorsement belongs really to the people who attend and not be accredited to the State as long as the State didn't really encourage or promote or recognize the--

Justice Stevens: May I ask you a factual question?

Does the record tell us how big the group was of the children involved in this club?

Mr. Marcelle: --How many, Justice Stevens?

Justice Stevens: Yes.

Mr. Marcelle: Initially, at the time of making the application, there were 20, and we had opportunity to use the school for a year and a half, and at the conclusion of that, at the time we made our motion for summary judgment, I believe, it was the same number.

Justice Stevens: Thank you.

Justice Scalia: You used it for a year and a half.

You actually did use it before the prohibition was issued or what?

Mr. Marcelle: The district court... yes, Justice Scalia, the district court issued an injunction, and we used the school facilities for a year and a half.

Justice Scalia: But you didn't use it?

At what time did you use it?

Mr. Marcelle: At 3 o'clock, the high school resource room.

Justice Scalia: At 3 o'clock.

And was there any evidence about whether other grammar school students were still milling about when you were using it, looking longingly at the classroom where this was going on?

Mr. Marcelle: No, Justice Scalia.

In fact--

Justice Scalia: Go ahead.

Mr. Marcelle: --In fact, in the district court's opinion, and for the preliminary injunction, it says such a case would be unlikely.

Justice Kennedy: You say this was the high school room?

Mr. Marcelle: Yes, a high school resource room, Justice Kennedy.

Justice Kennedy: Is the high school and the elementary school one facility?

Mr. Marcelle: That's correct, Justice Kennedy.

Chief Justice Rehnquist: Thank you, Mr. Marcelle.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Santa Fe Independent School Dist. v. Doe - Oral Argument

Fri, 09 Jan 2009 14:50:16 +0000

Case:

Santa Fe Independent School Dist. v. Doe

Media File:

99-62_20000329-argument.mp3

Related Transcript:

1999_99_62_argument.xml

Transcript:

Argument of Jay A. Sekulow

Chief Justice Rehnquist: We'll hear argument now in Number 99-62, the Santa Fe Independent School District v. Jane Doe, et al....

Mr Sekulow.

Mr. Sekulow: Mr. Chief Justice, and may it please the Court:

Santa Fe Independent School District has adopted a neutral policy which simply permits student-led, student-initiated speech at football games.

The policy, which can be found in its entirety at pages 104 and 105 of the joint appendix, allows for the individual student to determine the content of the message.

That message may include a prayer at the student's discretion.

The policy does not violate the Establishment Clause, and the United States Court of Appeals for the Fifth Circuit is wrong and should be reversed.

The Santa Fe policy creates a venue for student expression.

It is neutral as to religious or secular speech.

The policy serves the important and legitimate goals of solemnizing the event, promoting good sportsmanship and student safety, and establishing the appropriate environment for competition.

In fact...

Justice Ginsburg: Restraints, are they not?

Mr. Sekulow: I think it's similar to the topical restriction that you would see in a limited public forum case, a Rosenberger, for instance, in the situation there, where it had to be related to educational mission.

Clearly...

Justice Ginsburg: Well, it's a little more precise and constrained than that, is it not?

For example, could the message be, break their necks, make them wrecks, buckle down, boys?

Mr. Sekulow: I would think the school district...

[Laughter]

I think the school district would have the authority, and that's more of a Bethel v. Fraser question than an Establishment Clause issue.

I think under normal school district authority they can control the nature of what's going to be said in that regard.

The policy also specifically states that it can be utilized to establish the appropriate environment for competition.

Clearly, Justice Ginsburg, that would not, but that would be a neutral criteria applied.

It would not be...

Justice Breyer: Would it not... rather than an Establishment Clause problem, what if somebody chose to speak on the subject that, all religion's bunk?

Mr. Sekulow: We...

Justice Breyer: I mean, does that comport with the... I'm not sure what solemnizing a football game is, but assuming there is such a process...

[Laughter]

would that comport with it?

Mr. Sekulow: Well, I think that in a situation like that it would be perfectly appropriate, if the student felt that was going to create the appropriate environment for competition, to engage in that kind of speech.

This is a broad policy.

It's not this limited policy here.

For instance...

Justice Souter: Then what does... just tell me... maybe this is not important, but what is it, what would it be to solemnize a football game?

I thought at least it would require religion, or require religious messages to sound religious, and you say no, it doesn't.

Mr. Sekulow: No, I...

Justice Souter: What is solemnization here?

Mr. Sekulow: Solemnization is bringing about respect, honor, and dignity, and a secular invocation, even, could take place.

It doesn't have to be religious, but a secular solemnized message...

Justice Souter: What is a secular invocation?

Mr. Sekulow: Let every one here... I ask everybody's participation for student safety, and let's encourage good sportsmanship.

That's an invocation.

That's petitioning for assistance.

Justice Souter: Well, that's a nice speech, but it's not what we normally mean by invocation.

Mr. Sekulow: But even...

Justice Souter: And one of the problems, it seems to me, with your case, and one of the problems with the premise of your argument is that it assumes that this language, which we see on the face of the policy now, is descriptive of what, in fact, is going on.

And I will be candid to say that it seems to me that it is asking us to shut our eyes to what the sequence of provisions for this practice shows, and the sequence of provisions shows that we started out with a student chaplain and an invocation and, after the lawsuit was brought, the student chaplain became a speaker, and the invocation gained the alternative of a noninvocation, but it seems to me that there isn't a very realistic basis to suggest that anything different is going on, or intended to go on, from what went on and was intended to go on before the lawsuit.

Mr. Sekulow: First, this is a facial challenge, and the respondents bear the burden here of establishing that there's no basis upon which the policy can be implemented in a constitutional way.

Secondly, there's an independent circuit-breaker here.

Justice Souter: But the... on a facial challenge, we are not required to close our eyes to the context in which the language has come to be.

We don't wait for a specific application, e.g., a Hail Mary.

I guess...

Mr. Sekulow: Hail Mary would probably be appropriate.

Justice Souter: But we don't wait for that, but we don't close our eyes to the context in which the policy arose.

Mr. Sekulow: I think that's correct, and the context upon which this policy arose was after the decision in Lee v. Weisman litigation in this case arose, this school district, pursuant to a district court order, adopted a policy which was actually broader than the district court's order, and here I think it's important to emphasize that the individual student selected, if, in fact, there is a decision to have a student give a message, that that student is the circuit-breaker.

That student determines the message.

There is no way to know what that student's going to say.

Justice Kennedy: Let me ask you about that...

Mr. Sekulow: Yes, Justice.

Justice Kennedy: Mr. Sekulow, and to conserve your time I'll just state my concern...

Mr. Sekulow: Sure.

Justice Kennedy: rather than ask a series of questions.

I assume that the election is offered to us as a saving feature of the program, yet an election doesn't mean anything without a campaign, and if we had a campaign it seems to me that the students might say, I will be a very good speaker, representative of the school, because I am well-trained and well-motivated to give inspirational prayers.

Another student has a poster saying, no prayers in school, and they have a school election, based on the issue of whether or not there should be prayer.

Now, that is the kind of thing, I think, that our Establishment Clause wants to keep out of the schools.

We have a school electoral mechanism, a governmental mechanism for selecting a speaker, and one of the criteria is, I should think, whether or not prayers are going to be given.

Mr. Sekulow: There's two responses...

Justice Kennedy: And if... and I'll just finish.

And if it's not, then it seems to me we're just avoiding the question, and the hard question is, can you give a prayer?

Mr. Sekulow: Well, there is not a majority vote on prayer in this case.

First of all, the way that the structure is set up, the individual student determines content and, secondly, with regard to the approach here, that individual student will make the decision whether, in fact, to include a secular message or a religious message.

Justice O'Connor: But the point of the question, of course, is that there may well be a campaign among students to be chosen and, if that's the situation, then how do you respond to Justice Kennedy's question?

Mr. Sekulow: The district court... and this policy came out of the context of a district court order, which specifically stated that there would be no campaigning allowed on campus.

Now, that was implemented by the district court judge and served as the basis...

Justice O'Connor: But it could be off-campus.

Mr. Sekulow: Sure it could, certainly, but again there is an independent speaker here, and that is the student and no one knows, whether they campaigned or not, what that high school student might say, and I think specifically to strike this policy down requires that the Establishment Clause now place an affirmative obligation on the school district to censor only the religious message of the student and that...

Justice Stevens: Do you think there's a First Amendment problem in a rule that prohibits campaigning?

Mr. Sekulow: Well, that would be a different case, and...

Justice Stevens: But it would be rather strange to be relying on such a rule.

Mr. Sekulow: Well, that's the policy that the district court issued and that is... the order, rather, that the district court issued.

Justice Scalia: Well, I guess Justice Kennedy's problem would be eliminated if the school simply said, the captain of the football team shall deliver the solemnizing message or invocation.

Mr. Sekulow: I think it would be... again, as long as it's a neutral criteria...

Justice Scalia: And if that's the only thing that's... you know, that has to be fiddled with in this arrangement we haven't achieved a whole lot here.

Mr. Sekulow: Well, I suspect that...

Justice Scalia: Or perhaps they could say the student with the highest grade, or something else, and then you wouldn't have the election, and then it would be okay.

Mr. Sekulow: As long as there's a neutral criterion.

Here...

Justice Scalia: Now, before this, I guess before Lee v. Weisman the school used to have somebody deliver a... an invocation...

Mr. Sekulow: There was a chaplain.

Justice Scalia: which was... was it nonsectarian religious?

Mr. Sekulow: There is nothing in the record regarding the specific content of the prayers under this policy, and there's nothing in the record really about...

Justice Scalia: It could have been, though.

Mr. Sekulow: It could have been.

That was up to the individual student.

Justice Scalia: Whereas under this policy you must allow the student, if he wishes, to invoke Jesus Christ, or...

Mr. Sekulow: That's correct.

Justice Scalia: or say a Hail Mary, or anything else.

Mr. Sekulow: That's correct.

Justice Scalia: That's a real advance.

Mr. Sekulow: The school district has taken a hands-off approach here.

If it's individual student speech... in Mergens, the opinion there focused on, and again it was mentioned in Rosenberger, that there's a crucial difference between the Government as a speaker and a private speaker, and in Lee v. Weisman, Justice Kennedy, the context there was the assumption that the State was the speaker.

The State ordered...

Justice Kennedy: Well, when the student goes to the community as the representative of the school, I should think we would want to have some ongoing supervision by the regular faculty.

We should encourage students to go out into community affairs.

I'm just not sure what the faculty ought to do if they are selecting the speaker and if five members are sitting around on a faculty committee, do we encourage this young person to give prayers or don't we?

It seems to me that is the question we ought to answer in this case...

Mr. Sekulow: That's correct.

Justice Kennedy: if we can.

Mr. Sekulow: And we stay neutral.

This school district has adopted a hands-off policy.

The policy itself states, on page 104 of the joint appendix, that the student volunteer who is selected by his or her classmates may decide what message or invocation to deliver.

Justice Breyer: Yes, but what do we do about the history?

Mr. Sekulow: I think the history is relevant only in this context, that before there was the decision Lee v. Weisman, school districts like this one and others around the country, there was prayer going on and speeches going on in sporting events, or at sporting events and, in this particular case, this school district is trying to comply with this Court's Establishment Clause jurisprudence by adopting a neutral...

Justice Ginsburg: Mr. Sekulow, would it comply equally well if the school district said, now, football is a big event in this school district and everybody comes to the game Friday night, so we want to have everybody, all the registered voters... there are more adults than the school students.

They are interested in what's going on.

The electorate will be the registered voters, and then there will be people who come forward as volunteers, same thing.

Just substitute for the student body of the high school the electorate of the district.

Would that be equally constitutional?

Mr. Sekulow: Well, I think the question first would be whether the... a school district would have the authority to call a general election.

I suspect not.

Secondly, again if it's a neutral criteria...

Justice Ginsburg: Whoever... the school district says, we would like this to be as democratic as possible, so we want to use the democratic process.

Mr. Sekulow: If it's... it would depend... it's too late in the day to argue that facts and circumstances don't have an impact.

Of course it would, and I think in that particular case it would depend whether the policy's neutral.

This policy allows the student to participate, to continue to have participation throughout the process.

They could also vote not to have a message under this policy.

The school district was operating under the context of litigation, where there was a district court order that specifically stated, adopt a prayer-only policy pursuant to a Fifth Circuit decision, Jones v. Clear Creek.

This school district...

Justice Ginsburg: Mr. Sekulow, I don't think that... perhaps I didn't convey clearly enough what I meant.

Registered voters, I think you shied away from that, because that sounds like the Government designating the electorate.

Here, too, the student... these are not students acting individually when they're voting.

It's the students as a body, as an electoral body that the school district has designated that will be the decision-maker.

Mr. Sekulow: Justice Ginsburg, students and adults and members of the community vote throughout both the student's academic life and when they're an adult, and I think if a school district was trying to inculcate the idea of a democratic society and participation, that it would encourage a student voter.

The question about whether the adults could vote, I think if there was authority assuming that they could vote, as long, again, as it's a neutral policy and a neutral practice, that's what...

Justice O'Connor: Well, we had a case decided just this term dealing with submitting to student election the participation and use of student fees for certain purposes and expressed some concerns about that mechanism, didn't we?

Mr. Sekulow: That's correct, and in Southworth the concern was the issue of viewpoint neutrality in regard to majoritarian vote.

Here, the viewpoint neutrality is expressed in that the individual student is the speaker, and there is no majoritarian vote under this policy.

This is a plurality.

Justice Kennedy: Well, I don't have too much... in Southworth we'd already... our predicate was there'd already been invasion of First Amendment rights, and this was just a corrective, and here the whole question is, ab initio, what are the...

Mr. Sekulow: That's correct.

I think...

Justice Kennedy: the rights of this... it seems to me what we're concerned about is avoiding the schools becoming a forum for religious debates, and one thing we could do is say, it is unconstitutional, illegal to say a prayer at all.

Never.

This is a very costly intervention when the school seeks to go out into the community.

I understand that.

Mr. Sekulow: There would be very serious First Amendment issues.

Justice Kennedy: Now, if we don't adopt that wooden, rigid rule, then we still are looking for some mechanism to ensure neutrality, to keep divisiveness out, and I haven't seen what it is in this case.

Mr. Sekulow: The neutrality... sorry.

Justice Kennedy: I think the election thing doesn't work, for the reasons I suggested and that Justice Ginsburg has been asking you about.

Mr. Sekulow: Well, I think the ultimate circuit-breaker exists here even under this election context, and that is, the independent, individual student who decides to make the message, if they're selected by their peers, determines the content.

I think we...

Justice Souter: Well, but Mr. Sekulow, even if we... and I'm... because of my first question I don't... I'm sure you will understand I don't find that enough of an answer.

But assuming it is, if the student who is chosen exercises that student's choice to pray, we are still faced with a system in which it is the school or the school district that provides the forum in which this is going to appear, requires the attendance of a certain number of students to be there and, therefore, requires those students to sit there while a prayer is going on.

What more do we need to decide the Establishment Clause case?

Mr. Sekulow: I think, Justice Souter, this is a policy that this school district adopted utilizing a neutral criteria.

We're presuming that we know what the students are going to say.

Justice Souter: And I'm assuming... I'm assuming for the sake of the question...

Mr. Sekulow: Okay.

Justice Souter: that the criterion will be accepted as neutral.

Mr. Sekulow: Okay.

Justice Souter: And I'm taking it to the next step, and I'm saying, if the student who is given this neutral option chooses to use that option to pray, the school district is forcing schoolchildren to sit there and participate in this praying ceremony.

Mr. Sekulow: I...

Justice Souter: And it seems to me that's as far as we have to go to decide the case, even on your premise.

Mr. Sekulow: Justice Souter, in Lee v. Weisman your concurrence, footnote 9, states that if there is a neutral policy and the student... and the speaker, not a State actor, engages in speech of their own choice, that even if it's religious, it doesn't violate the Establishment Clause.

Justice Souter: We're talking here not about a neutral choice to engage in kinds of speech.

That was going on, for example, in Rosenberger.

I didn't accept the characterization, but that was the Court's characterization of it, and that's the law.

Mr. Sekulow: But then we're left with...

Justice Souter: This is not a neutral speech policy.

The premise of my question is that we are not having a discussion about religion.

It is not merely religious subject matter.

It is religious worship.

It is an act of religious practice.

Mr. Sekulow: And that... if the student decides to engage in a prayer, that is speech protected by the First Amendment, and to then say that a policy...

Justice Souter: As private speech.

The question is whether that speech can be, in effect, involuntarily inflicted upon those who may not want it by the power of the State.

Justice Scalia: Mr. Sekulow, is...

Mr. Sekulow: We think not.

The student doesn't become a State actor.

Justice Scalia.

Justice Scalia: Is there a distinction between prayer as violating the First Amendment and proselytization, or for that matter criticizing religion as violating the First Amendment?

Mr. Sekulow: All speech is protected by the First Amendment, and I think that the school district would be placed in the position of censor if they were to determine that that was not going to be allowed.

Justice Souter: That may be a weakness in Rosenberger, but it has nothing to do, it seems to me, with the point that is being raised here.

Mr. Sekulow: I think it has... with respect, Justice Souter, has everything to do with it, because it requires the affirmative obligation to censor the student's speech.

Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.

Argument of John Cornyn

Chief Justice Rehnquist: Very well, Mr. Sekulow.

General Cornyn, we'll hear from you.

Mr. Cornyn: Mr. Chief Justice, may it please the Court:

Respondents ask this Court to simply assume the worst of the school officials involved and of the students who will ultimately be the speakers under this policy, which has yet to be applied because its application has been suspended while this litigation goes forward.

We submit that under the standard of review of a facial challenge that respondents' burden is heavy to show that it could never be constitutionally applied, and we believe this school district, just as in Agostini, is entitled to the presumption that school officials will faithfully discharge their duties according to the law, as laid down by this Court.

There is no evidence to support the conclusions offered by the respondents that this is somehow a sham, or a pretext.

Indeed, the trial court below found that any incidents which gave rise to this litigation were isolated incidents.

Justice Scalia: General, do you assert that this facial challenge has to fail simply because it is not necessarily the case that whatever student is selected will deliver a prayer or a religious invocation?

Is that alone enough to defeat the facial challenge?

Mr. Cornyn: No, Your Honor.

We believe that this policy is one which the school officials attempted to come up with in light of this Court's decision in Lee v. Weisman, in light of the controlling Fifth Circuit precedent, at least that the district court felt was controlling.

Jones v. Clear Creek, they were trying to work their way out of a very practical problem.

How do we avoid getting sued for Establishment Clause violations?

How do we avoid getting sued for a violation of the free speech clause?

Justice Kennedy: I thought your answer to Justice Scalia would be yes, it's completely sufficient.

We don't know how this policy is going to...

Justice Scalia: You surprised me.

Justice Kennedy: Maybe nobody will...

[Laughter]

Mr. Cornyn: I misspoke if that was my answer.

I did... I... excuse me.

I did misspeak, then.

We believe this policy does pass muster under a facial challenge, because we don't know what the choice is ultimately going to be by the student, the selected speaker.

There is no way that respondents or anyone else can predict how the student chosen through this neutral mechanism is ultimately going to respond to this...

Justice Breyer: As soon as it's in place once and they give one prayer, then the case is back.

Is that right?

Mr. Cornyn: I think not, Your Honor, and let me just... unless the Court is going to say the school district must engage in viewpoint discrimination...

Justice Breyer: But that's your basic substantive argument.

I mean, that was the... I understand that.

Is there any... I mean, there are prayers in public places, they're called invocations, in Congress, here, at the inauguration of the President and so forth, and I gather that in Texas this is a big community event, but I take it no one is saying that for that reason they could have an invocation of God's name.

Mr. Cornyn: Well, the only reason we believe...

Justice Breyer: I mean, it's...

Mr. Cornyn: that this policy is constitutional is because it is neutral with regard to the message.

Justice Ginsburg: General Cornyn...

Justice Breyer: All right.

So you're not saying...

Justice Ginsburg: on the neutrality, may I ask you, that's been repeated by Mr. Sekulow and you.

In, I think it was Justice Kennedy's opinion in Rosenberger, he defined neutral criterion this way.

He said, there must be good reason to believe that over time the criterion will yield expression reflecting the whole spectrum of political speech.

So if you're going to assert on a facial challenge that you have a neutral criterion, what reason is there to believe in this case that, over time, what we will see as a result of the policy the State has initiated, that there will be the full spectrum of speech resulting?

Mr. Cornyn: Of course, this facial challenge, the policy that has yet to actually be applied, we can only be left to speculate, but let me suggest that in Bethel v. Fraser, Matthew Fraser, who was disciplined for making a sexually explicit speech when nominating a fellow student for student council, was later elected by his peers to speak at the graduation ceremony, and I think respondent's argument is really just wrong in that it assumes what the nature of the speech will ultimately be, the criterion upon which the student will be selected.

Justice Scalia: General, I assume that that statement in Rosenberger, which said the full spectrum of political speech, focused on political speech because that's what the policy that the school put in place was intended to foster.

If it's a limited-purpose forum in this case I think all you would have to defend is that there would be the full spectrum of solemnizing and of solemnizing speech, which would be students saying, you know, let's pause in memory of the members of the football team last year who got killed in a car crash, or whatever.

Why would you want to defend the proposition that all manner of political speech would... I mean, surely all manner of political speech wouldn't be allowed in this case.

It's only solemnizing speech that...

Mr. Cornyn: Under Cornelius and other cases by this Court the school officials can keep the students on topic for the purpose for which the opportunity to speak is allowed, but solemnization...

Justice Souter: Let's assume that they stay on topic and, taking Justice Ginsburg's question as limited to that, I think she's asking a factual question, not a question about precedent but a question about fact, what could be expected, and let me just add a footnote to her question.

Is there any reason that anyone would expect that we would get a solemnizing speech to the effect that religion is bunk?

Mr. Cornyn: I just don't think any of us know, and I don't think the Court should have to guess.

Justice Souter: But the question is, do we have reason, if we're going to apply this definition of neutrality, and assuming it's appropriate, do we have reason to believe that, over time, that kind of a spectrum of expression on religious subjects is going to occur here, and I mean, the point of my question is, I don't think there's any reason to expect that there's going to be a speech at those football games saying religion is bunk.

Mr. Cornyn: Respectfully, Your Honor, we just don't know, and I don't think...

Justice Souter: Well...

Justice Breyer: That's what's worrying... look, from an Establishment Clause point of view, this is a mechanism.

It seems to me that the school district has figured out a way to have a prayer, but the mechanism itself seems to leave minority religions out more.

I mean, instead of a general prayer, you'd have something that reflected the majority view, which is understandable, but from the point of view of the... I'm not saying it's a bad speech.

I am saying, though, that wouldn't the minority person be likely more left out under the policy that you advocate today, that even under a policy that said some kind of nondenominational prayer like an invocation was okay.

Mr. Cornyn: Your Honor, in a world where free speech is valued, where private free speech is valued, we are all inundated by messages we disagree with and find ourselves in a minority status from... on a daily, perhaps hourly basis.

Justice Breyer: That's true, but the purpose of the Establishment Clause is to allow families to raise their children in the religion of their choice, and we have schools favoring one religion over another, and giving that kind of message, isn't that very contrary to the purpose?

Mr. Cornyn: Respectfully, Justice Breyer, I disagree.

This is not the Government speaking.

This is a private individual speaking as a matter of their own volition and free choice.

Justice O'Connor: Well, but it is through the mechanism of the school organizing a majoritarian vote to determine it, which is a very unusual sort of an arrangement.

I don't think we've addressed anything like that before.

Mr. Cornyn: Justice O'Connor, of course, as this Court's observed, there are always going to be interaction between school officials and religious expression, and it's impossible to totally separate the two.

This...

Justice O'Connor: Well, presumably if this mechanism is approved here the same thing could be done in every classroom every day, and let the students decide each day on a speaker for the day to start the class and so forth.

I think, you know, we have to look at the extended application of this concept.

Mr. Cornyn: We certainly do not submit that this could occur in the classroom which, as the Court observed, risks the appearance of Government entanglement, and with compulsory education requirements and the like.

This is an extracurricular event.

Justice Stevens: But may I ask this question, just to be sure I have it in mind?

Mr. Cornyn: Yes.

Justice Stevens: The person who's elected gives the solemnizing invocation for every football game at home, right?

Mr. Cornyn: Message or invocation.

Justice Stevens: Whatever it is, but repeated messages, so that if the school disapproved of the first message that the person gave, the person could continue to give the same message over and over again?

Say he used foul language in his message, for example.

Could they tell him not to do that next time?

Mr. Cornyn: Yes, sir, they could.

They could, Justice Stevens.

The Court has made clear that they can... that the school officials can maintain good order and make sure that...

Justice Stevens: And supposing he made an appeal to one particular denomination.

Say 90 percent of the people in school were Mormons, and he made some specific appeal to people of that religion, could they suggest next time he not do that?

Mr. Cornyn: If it was not on topic...

Justice Stevens: Well, it's right within... squarely within the language of the policy.

Could they suggest to him that maybe that had gone overboard a little bit?

Mr. Cornyn: May I answer the question?

Chief Justice Rehnquist: Yes, you may, shortly.

Mr. Cornyn: It would be impermissible for school officials to edit or censor the content of the speech, as long as it was on topic.

Justice Stevens: Even if it's overtly sectarian?

Mr. Cornyn: As long as it's on topic, that's correct.

Chief Justice Rehnquist: Thank you, General Cornyn.

Mr. Cornyn: Thank you.

Argument of Anthony P. Griffin

Chief Justice Rehnquist: Mr. Griffin, we'll hear from you.

Mr. Griffin: Mr. Chief Justice, may it please the Court:

In July of 1996 there was a hearing held in the district court in Galveston, Texas.

In that hearing, the court, the district court, took testimony and part of the testimony came from the Dogs, as they're affectionately known, in this case.

Justice Scalia: Could I ask you about that?

That's just a curiosity I have in this case.

I don't even know who the plaintiffs are.

Is there... how come it's Jane Doe?

I mean, are these minors?

Is... or what?

Mr. Griffin: One parent is... one parent, one group of plaintiffs were Catholic, a Catholic family.

Another group of families were a Mormon family.

Justice Scalia: Do people have rights to sue anonymously in Federal court?

Is anybody who just doesn't want it known that he's bring a lawsuit, he's ashamed of it for one reason or another, can sue anonymously?

I didn't know we could do that.

Mr. Griffin: I think the jurisprudence is, if there is a threat of intimidation, if there's a threat of violence, if there's a threat... and I think there was testimony that... within the temporary injunction when the case first started that there was this threat, and the district court had entered an order instructing not to ferret out the names, and when there was an attempt to ferret out the names...

Chief Justice Rehnquist: Well, how does the district court have authority to do that?

Mr. Griffin: Well, he had an attempt... he had the authority to protect the plaintiffs, in other words, from any threat.

The names of the plaintiffs were known to the defendant.

Chief Justice Rehnquist: What was the threat?

Mr. Griffin: The threat was, we had information that certain children were intimidated, certain children were pushed, certain plaintiffs, certain people who were not plaintiffs had to pull their children out of the school because of protesting the prayer policies that existed in Santa Fe, and that there was a intimate threat that the district court saw it necessary to protect.

Chief Justice Rehnquist: Well, do you think the district court just has complete discretion to grant anonymity that way?

Mr. Griffin: I don't think the district court has the complete discretion, and I think that one of the issues that we briefed at the trial court below was that issue, and when we got to the... into the hearing of July of 19 and 96, the district court said, now that we're going into a hearing, these names must be revealed, but we will do it under protection.

He did not seal that courtroom.

He asked the press not to publish their names, but their names ultimately became...

Chief Justice Rehnquist: Their names ultimately were...

Mr. Griffin: Yes.

Their names ultimately became known to the public and... but they were not published in the newspaper, and in this hearing one of the most fundamental things that happened in the hearing after the district court had gone through the problem of the injunction, after the district court had instructed not to ferret out the names, after the court had heard testimony in terms of intimidation, the district court looked at the plaintiff, known as Susan Doe in the record, and he asked her, what is the big deal?

And she looked at the court and she said, I teach my children at home religion, and I don't want to go down, and I don't think it's necessary for me to go down to the school and interview every one of the teachers and find out their religious faith.

That's the backdrop of this case.

In this case, the policy of Santa Fe Independent School District is unconstitutional on its face and it's also unconstitutional as applied.

It endorses religion, its whole purpose was religion, and what, in fact, they do, they weave a web, and they seek to have this Court ignore their history.

On page 94 of the joint exhibit, joint appendix of this Court, it has the chaplain policy that existed long after Lee v. Weisman and if my memory serves me well, Lee v. Weisman was decided in 1992.

This lawsuit was brought in 1995, and that chaplain's description, that official description, says that he will lead... he or she will lead the Pledge of Allegiance, that he or she will say a prayer at all meetings, not just some meetings, all meetings, that he or she will lead the prayer at football games and baseball games, or athletic events, and in the joint stipulations that the parties filed...

Justice Scalia: Of course, it wasn't clear at the time... in fact, it still isn't clear, is it?

that Lee v. Weisman applies to football games.

It surely applies to commencements, where the... your client's child would presumably have to go, but your client's child doesn't have to go to football games, and it may well be that the rigid rule we adopted in Lee v. Weisman that you cannot have even nondenominational invocation at graduation, would not apply to football games.

Mr. Griffin: Justice Scalia, I think that's a good point, but one of the things... we oftentimes speak to our lawyers, and one of the things we cited in our briefs was, the lawyer for Santa Fe admitted to the district court that Lee v. Weisman had not been extended... excuse me.

Jones had not been extended to football.

In other words, the Fifth Circuit had allowed graduation... had allowed graduation prayer in a limited context, and the court said, how about football, and counsel admitted, well, it hasn't been extended, but we want to press it as far as we can press it.

That's the admission of their lawyer.

Now, even if it's not extended...

Chief Justice Rehnquist: Is that so strange that an attorney would want to press a particular decision the way his clients wanted to go as far as it could be pressed?

Mr. Griffin: It's strange in this context, that you have a official policy that's still in existence in 1996, 1995 that defines a chaplain to do prayer at all events and all meetings, and that's a student officer.

Chief Justice Rehnquist: That isn't the present policy, is it?

Mr. Griffin: Well, it changes, and if I can address the Court's... what, in fact, occurred, Chief Justice, what in fact occurred is, after the lawsuit was filed, the school district then said, let's conduct a vote to determine whether there's prayer, in other words, majoritarian vote.

They vote even before the change of the policy.

Chief Justice Rehnquist: Well, what's that got to do with it?

Mr. Griffin: Well, they then changed the policy, and they changed the policy in September of 1995, and in September of 1995 they changed it to read, prayer... excuse me.

The board has elected to allow an invocation, and then, once they looked at the policy once more, and I know this Court has instructed us not to take the caption of a... an act to make a determination as to the meaning of the act.

The caption of the act said, prayer at football games.

The meaning of the act, when you look at the very words, when they are modified in September of 1995, they included the board, which is government only involvement, had elected to allow...

Chief Justice Rehnquist: Mr....

Mr. Griffin: an invocation.

Chief Justice Rehnquist: I'm curious to know why you're going into these antecedent details when the question we granted certiorari on is the present policy.

Mr. Griffin: Two reasons, Your Honor.

If we go to the amendment in February of 1996, the present policy, that present policy was changed to include the words, message and/ or invocation.

Chief Justice Rehnquist: And how does that bear on your argument?

Mr. Griffin: Well, two points.

There were existing policies in existence at the school district that allow silent prayer.

There was existing policies in the school district that allow people... the students to express their religious beliefs.

There were... there was no need for to basically isolate prayer and give it a free pass, and that's what those present policies did.

Answering the Chief Justice's question directly, I don't think we can divorce ourselves from the history and the context of this policy.

Justice Kennedy: Well, I'm not saying that you can't try your case or argue the case that way.

On the other hand, for this Court to take individual school districts and say that we don't accept at face value what their policy is puts us on a very difficult course for later cases.

I take it that even if this school district had had no prior history of the type you describe, that you would object to this policy.

Mr. Griffin: Yes.

It's majoritarian prayer.

Absolutely.

Justice Scalia: Well, it can be majoritarian prayer, and you expect that in most cases it will be, but it need not be.

Mr. Griffin: No.

Justice Scalia: I mean, on it's face, it need not be.

Mr. Griffin: On it's face, it's majoritarian prayer, that in fact the school board comes in...

Justice Scalia: No, but the majority can elect somebody who does not want to give a prayer.

Mr. Griffin: They can.

Justice Scalia: So then it's not necessarily majoritarian prayer.

Mr. Griffin: And they can elect to give, they can elect a person to give a prayer for the next 10 years who will not give a prayer.

Justice Scalia: But you can't say that in every case it's going to produce a prayer.

You just can't.

Now, you may suspect that in most cases it will, but you know, when we appoint chaplains in the Armed Forces on the basis of what the needs of the members of the Armed Forces are, you can predict that the majority of them are going to be Christian chaplains, but that doesn't mean that the Government is favoring one sect over another.

Why does it necessarily mean here that the Government is favoring prayer over nonprayer?

It's just opened it up and say, you do what you want.

It knows what the result will be, as you predict.

Mr. Griffin: Well, we... well, may I address that, Justice Scalia?

Justice Scalia: I hope you will.

Mr. Griffin: Okay.

I will attempt so.

It doesn't open the forum.

It doesn't create a diversity of views.

It doesn't create a circumstance where a student can stand up and say, you know, religion, to borrow the words of Justice Souter, religion is bunk.

There's nothing in the face of this policy that allows... and I think the Attorney General has admitted as much.

He has stood before this Court and said, well, if it's outside the realm, we can... the student can still be disciplined.

There are still governmental problems.

Justice Scalia: Why... I don't think that you have to show, in order to prove this is a neutral law, that somebody can get up and say religion is bunk.

I mean, we have a provision for a Thanksgiving proclamation.

Now, I assume a President can, if he wishes, issue a neutral one that is nonreligious, or he can issue a religious one.

I cannot imagine his issuing one that says religion is bunk, because it does not pertain to the subject matter for which the proclamation was designed, and it's the same thing at football games.

The only reason religion is bunk is out is because it's not within the subject matter of solemnizing the occasion.

Mr. Griffin: Student-initiated prayer in my mind has it that if I have a different faith, or faith, I can pray before the football game, I can pray after the football game, I can even pray during the football game.

In other words... but I don't need the Government's forum.

I don't need to hold the Government hostage and say, I have an absolute right to take over the microphone, to take over the stage.

You have to let me speak.

Justice Kennedy: So you would...

Mr. Griffin: That's not the concept...

Justice Kennedy: So you would say that even if these speakers were chosen by lot, and they were widely representative speakers on a statistical basis, that if, by chance, one out of five were giving prayers, that it would be an unlawful exercise one... that one-fifth of the time?

Mr. Griffin: It depends on, Justice Kennedy, what the policy would say.

If it says, you're chosen by lot to give a message and/ or invocation, absolutely right, the policy still fails.

Justice Kennedy: They're chosen by lot to represent the school and give the school a good name.

Mr. Griffin: Tougher question.

I think they can... they... if they're chosen by lot to give the school a good name, then I think that's a tougher question.

It may be an as-applied case.

In other words, we look at the history and see how it's applied.

Justice Kennedy: Well, I'd like to know just a little bit about that.

In Justice Scalia's example, where you want to recognize the fact that there's been an accident where team members have been killed, or some terrible tragedy is... it would seem to me very odd not to have an invocation in that circumstance.

Mr. Griffin: I think oftentimes when there's disaster people bond in their churches.

I think oftentimes people express their religious beliefs.

In fact, under the current policies in the stipulations, and I think it was tab 9, the policies allowed for expressing religious beliefs.

I don't think that you can subject it to a majority vote, majoritarian vote, and then say that's a neutral policy.

Justice O'Connor: Well, let me ask you this.

Suppose that the school had no stated policy but did allow the captain of the team before every game to get up and say something, and suppose the captain on occasion says something in the nature of a prayer, is that somehow invalid?

Mr. Griffin: I still think that it's problematic.

I think that's also...

Justice O'Connor: I would have thought that would not be school-directed at all.

Mr. Griffin: I think, in borrowing this Court's language, this Court oftentimes has said that we look at the particular facts of a case.

We would want to know, for example, is this directive consistent.

It is the same...

Justice Ginsburg: Then you would have an as-applied challenge, and in this...

Mr. Griffin: Yes.

Justice Ginsburg: very case the language, as you pointed out, is message or invocation.

Suppose all that the policy said was message and dropped, or invocation.

Could you maintain a facial challenge?

Mr. Griffin: I've thought about that, and let me see if I can address it this way.

You can still, in my way of thinking, maintain a facial challenge even if it just says message, and I think that one of the problems that we face in terms of the facial challenge is, I don't think we can divorce ourselves from the history and the context of what's going on.

If that speech is given at the same time, if it's given at the same time that the chaplain gave his speech, everyone understands what's going on there.

Everyone...

Justice Ginsburg: So you can never purge the past.

If you put even a policy that looks like it has nothing to do with religion...

Mr. Griffin: I think you can purge the past.

I would never say that, and Chief... excuse me, Justice Ginsburg, I would never say that.

Justice Scalia: If it says just message, that seems to be purged.

I mean, it isn't even alluding to anything that even sounds like a prayer, as you believe invocation does.

Mr. Griffin: Justice Scalia, this Court has oftentimes looked at pretext.

In fact, the Fifth Circuit described this policy, even...

Justice Scalia: But not even a facial challenge.

I mean, bear in mind this is a facial... I mean, I think the question is whether you could maintain a facial challenge if they just used the word message.

Mr. Griffin: And I know it sounds strange, but I'm willing to say that yes, you can maintain a facial challenge even if they took away the word, invocation...

Justice Breyer: Mr....

Mr. Griffin: because if it's...

Justice Breyer: No, I didn't mean to interrupt you.

Mr. Griffin: If it's given at the same time, if it's given under the same policy, if everything is consistent with the past policy, the Court is entitled to look at that, and when you look at the words of this, it is subject to a vote, the issue of...

Justice Breyer: Okay, but your answer, I take it... I think your answer would be different if the school in order, in its view, to comply with Lee and Weisman ended the practice of football prayers, and then at some time later, maybe even simultaneously, enacted a new policy that at 2:00 every afternoon in the school 5 minutes will be given over during a break between periods for an elected student to give any message that the student wanted, would you find that that, the 5-minute message statement, would equally be susceptible to a facial challenge on Establishment Clause grounds?

Mr. Griffin: I'd still have a problem with it.

Justice Kennedy: You would even then?

Mr. Griffin: I would still have a problem with it.

I would not have a problem if it was a diversity of views.

I would not have a problem if it opened the forum up consistent with Mergens, consistent with Lamb Chapel, and opened the forum up to create a diversity of views.

Justice Kennedy: Okay, students chosen by lot, then.

A rotation of students.

Mr. Griffin: It gives both...

Justice Kennedy: In the course of the year, 180 students could speak.

Mr. Griffin: By lot, by grade point average, by, you know...

Justice Kennedy: But if you had the 180 students... well, it wouldn't be 180.

If you had a student a week at every football game, given the choice to speak at the time the invocation used to occur, you would have the problem.

Mr. Griffin: Yes, and there's another problem with...

Justice Kennedy: So context is everything.

Justice Breyer: Why is... why... can I... I don't what to... if you're finished with this, because I've a different question I wanted to ask.

Mr. Griffin: Okay.

May I...

Justice Breyer: Yes.

Mr. Griffin: There's another problem, though.

There has been a description that this is an extracurricular activity.

It doesn't take a creative genius to start the first part of the day with the notion that the first part of class is extracurricular.

The first 15 minutes of every day we're going to have extracurricular.

We pass a policy that says, wink, wink, students, you understand, we're going to have a message.

Chief Justice Rehnquist: Well, but I...

Mr. Griffin: They conduct a... excuse me.

Chief Justice Rehnquist: I think that if you say extracurricular but you have to be in class, that's not the same as going to a football game.

Nobody has to go to a football game.

Mr. Griffin: In the briefs of the parties, Chief Justice, there has been a description of football where they deminimize football.

One of the amicuses says football is football in Texas.

We supported the amicus and said, football is football.

The district court said, football is awfully more important in Texas.

Chief Justice Rehnquist: Well, it may be more important in the eyes of lots of people than classes, but is different in that nobody... am I wrong in saying that nobody is required to go to a football game?

Mr. Griffin: The band, Chief Justice, is.

Chief Justice Rehnquist: Well...

Mr. Griffin: One of our plaintiffs was a band member.

Chief Justice Rehnquist: Well, say students.

Students who are not in the band or on the team.

Mr. Griffin: Students who are not in the band, the cheerleaders, anyone who supports the team.

Justice Scalia: Is anybody forced to be a cheerleader, or a band member, or a football player?

Mr. Griffin: When you're a teenager, yes.

[Laughter]

And that's spoken from experience.

In the...

Justice Kennedy: It seems to me that part of the problem is that it's very important for kids to have school activities after hours.

That's when they keep out of trouble, their advisors are close hand, at close hand, and what we seem to be saying in order to accept your position is that we want minimum guidance from the schools.

That's somewhat counterintuitive.

Mr. Griffin: But there's not minimum guidance in this policy, and I understand the Court's dilemma, but there's... in this policy itself, they admit, even though when speaking to the Court... the policy itself admits that there is guidance.

They not only set the forum up, they have interaction of the principal, who gives direction on the election.

As the Attorney General says, if the speech is improper, we can still discipline.

That is not minimal guidance.

That is not a diverse forum, and if you look at the brief of the respondent, at no point in time do they tell this Court what type of forum it is.

I don't see any words saying it's a limited forum.

I don't see a word saying it's a public forum, because what, in fact, the Fifth Circuit said was, it was a sham, and the only way that you make it anything other than a sham is, you have to ignore you're electing one speaker to speak at all the games on a majority vote, and the Fifth Circuit not only called it a sham, it said the only way you can do it is put your tongue in cheek and ignore the facts in this case.

Justice Breyer: Suppose I thought that there are certain public events where you can have a... call it solemnizing, or I don't know the word to use to describe it, but you can invoke God's name... say the Inauguration, say the meeting of the Court, say Congress sessions.

Certain public events, you can.

Mr. Griffin: Absolutely.

Justice Breyer: If absolutely, then absolutely we then have to draw a line between the ones you can and the ones you can't, and why... that's what I'd like you to focus on, and there are certainly a lot of people who say, look, high school football games in small communities are really not all that different from the Inauguration, frankly.

Mr. Sekulow: [Laughter]

Justice Breyer: They're big public events, and so if you're trying to draw a line, cut through all this and just say it's not like a graduation, it's a big public event, and it's exactly the same thing, and I'd just like you to focus upon that.

Mr. Griffin: In reading this Court's opinions, it has admonished we in the public that this area of law is not necessarily consistent, in other words, straight across the line.

Justice Scalia: Suppose I wanted...

Mr. Griffin: And that's acceptable.

I think that's acceptable, and it's acceptable to this degree.

I think that the debate that goes on in Congress is a little bit different.

Now, we can take notice that in... with respect to the chaplain, even though it's part of a legislative act, they've had this same debate.

That's how divisive religion oftentimes becomes in the forum, that when they seek to nominate a chaplain who was someone other than Protestant, all... everything broke loose.

[Laughter]

And it became part of the debate.

Now, I recognize that it is not a straight-line consistency, but I think, and I will submit to the Court this posture is prudent with respect to secondary schools has been consistent.

Justice Scalia: I don't get your point.

The congressional chaplain is unconstitutional?

Mr. Griffin: No, I didn't say that, and I would never say that.

Justice Scalia: Oh, then therefore anything that could lead to some sectarian controversy is not necessarily unconstitutional.

Mr. Griffin: Absolutely.

Justice Scalia: You cannot eliminate that possibility 100 percent without driving religion out of public life entirely.

Mr. Griffin: Absolutely.

When we drive down the street, we pray to our God.

It's part of our idiom.

Justice Breyer: You're right on the point I'd like you to address, because whether it's a straight line or a crooked line, or whatever the line is, you agree there is a line, and my question is, why doesn't high school football fall on the permissive side of the line rather than the impermissive side?

That's what I'd like you to focus on.

Why?

Mr. Griffin: Schools are different.

Justice Breyer: Because?

Mr. Griffin: Because...

Justice Breyer: Anything associated with a school is more likely to be on the impermissible side of the line, even if it's extracurricular and a community event?

Mr. Griffin: Absolutely.

Justice Breyer: Because?

Mr. Griffin: Anyone...

Justice Breyer: Because?

Mr. Griffin: Because children need that type of protection.

Children, the school district works as a parent.

This Court's case law, for example, in discipline cases oftentimes says that these children can be disciplined because they work as parents, and they don't have the same rights as an adult.

That's clear.

Justice Scalia: But Mr. Griffin, some school functions are educational.

The school is acting as a parent to the children, teaching them, education.

But other school functions in many communities are social.

It's the focus of social activity, and my impression is that that's what school football games are in Texas.

There's very little of the instructional involved in it.

It is a community exercise.

Mr. Griffin: With due respect to...

Justice Scalia: I'll bet you there are even people who go to those games who don't have any kids in the school.

Mr. Griffin: With due respect to Your Honor, athletic events serve a tremendous function throughout this country.

It teaches leadership.

It teaches following rules.

It teaches following the rules of the game.

It teaches sportsmanship.

They serve a tremendous function.

They're just as part of that school as any other event.

And when they put on the side of that stadium the Santa Fe Indians, when they invite folks in, and they bus them in through those buses, when the principal and everyone else shows up, and there's a social pressure that you've got to go to the football game, and when we idolize football players to such a degree that they obtain special rank in our schools, absolutely, they're part of the school system, as well as the pep rally that we hold during the school, before we ever... if a major game is coming up, there's a pep rally, and we let everybody out, and we go idolize our football game.

So I respectfully disagree that with respect to football, football is football, and it is part of our system.

Justice Ginsburg: But in stressing the importance of football, I don't understand you to be making a distinction between, say, dramatic plays, other assemblies that might be less popular in the community.

Would you say that this policy would be all right if it were limited to school concerts, school dramas, any place where the schoolchildren are assembled?

Mr. Griffin: No, I would not say this policy would be all right under drama or any other play, or any other circumstance and the reason is, it still should apply to football as well as baseball, as well as drama, is because there's still that pressure.

When we get those slips to tell us that we have to spend extra money to buy a uniform for our child that we don't want to go to, we're compelled as parents because our school districts expects it of us, so it applies across the board.

This Court has said...

Justice Scalia: Excuse me, social compulsion is certainly not enough.

I mean, in many communities you could say, oh, all the kids belong... they're socially compelled to belong to the Boy Scouts.

That doesn't render the Boy Scouts, you know, the Government for purposes of what things it can do and can't do.

Mr. Griffin: I agree.

Justice Scalia: So you can't just use social pressure alone as the justification.

Mr. Griffin: And I have not attempted to do that.

I have attempted, Justice Scalia, to address your concern that football was somehow different and it was outside the realm of the regular function, the classroom, and that we can somehow say, well, since it's football, let's just let them pray, let's let them do anything they want.

And there's not a school district in this country... they would cringe, and the administrators would cringe if I as a lawyer stood up in front of a board and said, you know what, this is football, they should be able to do anything they want, and I think that's what I was attempting to address.

This Court has said that we should not ever subject the right of free speech and press and fundamental rights of liberty and property to a vote, and it should not depend on the outcome of a vote.

This Court has also said in Southworth that majoritarian vote is simply not viewpoint-neutral, and this whole notion that somehow this becomes viewpoint-neutral as we change the words from chaplain to message... excuse me, to invocation, and then message or invocation, is to put our heads in the sand and ignore the culture and the historical phenomenon of what is happening in Santa Fe, Texas.

It has been my honor.

I thank the Court.

Rebuttal of Jay A. Sekulow

Chief Justice Rehnquist: Thank you, Mr. Griffin.

Mr. Sekulow, you have 3 minute remaining.

Mr. Sekulow: Thank you, Mr. Chief Justice.

First, this is a facial challenge.

This policy has never been applied, never been implemented.

There is not a religious speech exception to the First Amendment.

The idea that a student in a talent show would be told, it would be appropriate to sing John Lennon's song, Imagine, but another student would not be able to sing Amazing Grace is censorship.

The position of the respondents is that there is an affirmative obligation to censor only one type of speech, even if it was just a message policy.

Justice Ginsburg: Well, there is only one speech under the policy that the school board has adopted.

That's why you're bringing in all the cases where the religious group was one among many.

Here, whoever speaks, it's just one speaker.

No one else can talk.

Mr. Sekulow: Well, in that context, the Equal Access Act was triggered if there was only one noncurriculum-related student group, so the fact that it's one speaker...

Justice Ginsburg: Then there... there's another to have equal access.

Here, there isn't.

It's one alone.

It's not one among many.

Mr. Sekulow: And that one student, that one student determines the content of their message.

There is no majoritarian vote here on the content of the message.

The disclaimer's in the policy.

It states on page 104 that the student volunteer who is selected determines the content of the message.

That is private speech.

To make... to have these individual students become Government speakers... and that's what this would require, that an individual student, selected by her peers, determines to give a content of a message, say a nonprayer, just talks about the importance of sportsmanship, that student message would be okay.

But if that same student the next week, or the next home football game, were to give a prayer...

Justice Ginsburg: If under this policy it turned out that every speech was an invocation, including of the Deity, then what would you say about an as-applied challenge?

Mr. Sekulow: Well, I would say this is a facial challenge and that would be an as-applied challenge, and there would have to be empirical evidence that, in fact, there was forum domination.

But here again, though, this is individual student speech, and even if there was one student speaker, that student made... the first week of the home football game give a secular message, and the next week a prayer, there's no... the student is the circuit-breaker here, and the important issue in our view is that in fact you were to have this policy, which does protect a message and/ or invocation.

To strike it down requires there be an affirmative obligation to censor a student speaker, and that would be because the student speaker might...

Justice Ginsburg: But the student speaker, at least on this record that we have, and we have a brief to that effect, says, I'm not going to try to disguise what I'm doing.

I want to say a prayer, and that's what I'm going to do.

In fact, didn't she even sue to establish her right to say a prayer?

Mr. Sekulow: The Court's referring to the Ward litigation and interesting, there, the school district was actually sued because, in trying to comply with the Fifth Circuit Court of Appeals decision, they adopted a guideline that said, message only, and specifically stated that there would be no religious message being allowed to be given at all, and a district court judge issued a temporary restraining order saying that that's viewpoint discrimination, which is exactly our point.

Justice Ginsburg: But you're switching from the point that I was making.

Isn't it somewhat imaginary to say, we have to wait when we're told, I'm going to be honest about it.

I want to give a prayer, not some message.

Mr. Sekulow: Mr. Chief Justice, I see my time has expired.

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

[Laughter]

Attribution:

The OYEZ Project

Featured:

Capitol Square Review and Advisory Bd. v. Pinette - Oral Argument

Fri, 09 Jan 2009 14:49:58 +0000

Case:

Capitol Square Review and Advisory Bd. v. Pinette

Media File:

94-780_19950426-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Michael J. Renner

Chief Justice Rehnquist: We'll hear argument next in Number 94-780, Capitol Square Review and Advisory Board v. Vincent J. Pinette.

Mr. Renner.

Mr. Renner: Mr. Chief Justice, and may it please the Court:

I will attempt to preserve several minutes for rebuttal.

This Court today is faced with a factual pattern which requires the analysis of the friction that is created when two prongs of the First Amendment rub against each other.

Ohio suggests that this Court adopt a workable rule that any purely religious display which is unattended and positioned at the very seat of Government should be considered as a violation of the Establishment Clause.

Unknown Speaker: Mr. Renner, what do you mean when you say at the very seat of Government?

Mr. Renner: Mr. Chief Justice, the seat of Government would be a building or structure from which the public realizes the power of Government does its work.

This could be obviously a capital building, it could be a city hall, it could be a county courthouse, it could be a Federal building.

Unknown Speaker: Would it have to be located, say, at least in a county seat?

Mr. Renner: I am not aware... well, I don't think there are any... there would be Federal post office buildings that, for instance in cities other than county seats which--

Unknown Speaker: So when you say the seat of Government, you're not talking about a geographical location of a capital or a county seat.

Mr. Renner: --That's correct, Your Honor.

We're talking about a facility which the reasonable observer, the public, the common man, would associate as being governmental in its authority and from which governmental activities are carried out.

Unknown Speaker: Well, do you really mean, then, anything more than a Government building?

Mr. Renner: Probably not, Your Honor.

There are probably some Government buildings that are in rented office structures, for instance, and which the reasonable observer might not recognize the building as that of Government, in which case our rule would not carry the same weight.

Unknown Speaker: Do you think the reasonable observer can conclude that petition and assembly are important activities to take place at the seat of Government, assuming that that is a valid legal category?

Mr. Renner: Well, Justice Kennedy, the reasonable observer does understand that assemblies, demonstrations, speeches and rallies take place at the seat of Government frequently, yes.

Unknown Speaker: And is the Capitol Square a public forum, in your view?

Mr. Renner: Justice O'Connor, the Capitol Square has been recognized... certainly the State of Ohio's Capitol Square has been recognized as a public forum.

Unknown Speaker: And do you accept that?

Mr. Renner: We accept that it is a public forum, Your Honor, but if I could explain that just because it is a public forum doesn't mean that unattended displays are recognized as being anything other than a governmental display.

Unknown Speaker: Well, now, as I understand it, at one time the board here had adopted a regulation saying that all displays on the square had to be attended by someone.

Wasn't that the regulation?

Mr. Renner: I believe there was--

Unknown Speaker: No unattended displays permitted at the Christmas season?

Mr. Renner: --Well, that's correct.

I think the tenor of the resolution was there would be no displays at the Statehouse grounds, Your Honor.

Unknown Speaker: And that would have been a content-neutral sort of a time, place, and manner regulation, I suppose.

Mr. Renner: We would certainly believe that's correct, Your Honor.

Unknown Speaker: And the board could certainly adopt that as a policy, couldn't it?

Mr. Renner: That's correct.

Unknown Speaker: And it also, I suppose, could designate a certain part of the Capitol Square where it would allow displays by different groups.

Mr. Renner: That would be correct also, Your Honor.

Unknown Speaker: And it hasn't attempted to do that.

Mr. Renner: It didn't attempt to adopt that... it adopted the regulation you first suggested, but did not--

Unknown Speaker: And then withdrew it.

Mr. Renner: --adopt the regulation, the second--

Unknown Speaker: Has the board permitted other groups to have displays in the Capitol Square area during the holiday season?

Mr. Renner: --Yes.

I guess I have to answer yes Your Honor, because the State itself has a holiday display.

The State owns the holiday display.

It owns the Christmas tree.

As part of a previous holiday, several previous holiday displays, it has allowed the petition of one of the Jewish branches in the city to erect a menorah in conjunction with that holiday display.

Unknown Speaker: And any other groups?

Mr. Renner: The United Way at one time requested the State to have positioned in front of the State Capitol building a thermometer showing the progress of the United Way Campaign in the community, which the State readily approved.

Unknown Speaker: And has the board denied access to Capitol Square to groups other than the KKK?

Mr. Renner: Your Honor, other than the ones that you and I have just discussed, I'm not aware of any petitions for unattended displays on the Statehouse grounds.

Unknown Speaker: One last question.

I understand that the cross that was erected or proposed to be erected and in fact was by the KKK here had a disclaimer attached to it saying it was not a display of the Government.

Mr. Renner: That's correct, Your Honor, and I believe there's a photograph attached to the documents presented to the Court of the disclaimer.

It was of a cardboard nature which did receive immediate wind damage, but it was there.

Unknown Speaker: And, of course, the board could have required other types of disclaimers on more permanent material if it chose, could it not?

Mr. Renner: There is an infinite variety of potential disclaimers that could be employed.

You're correct, Your Honor.

Unknown Speaker: Mr. Renner, one of the points that you make is that the court of appeals seem to have applied a rule that so long as the forum is public, and so long as the actual sponsor is private, that's the end of the matter, and I'm not sure that the court of appeals applied that rule.

I'm looking at page A8 of the petition appendix, and on that page the court quotes from a prior case, refers to those two factors, but the quotation goes on to say,

"Although these facts are not automatically determinative, recent precedent indicates that they should carry much more weight than the details of the display emphasized by the plaintiffs. "

Now, I might very well agree with you that the manner in which the appearance of this display was analyzed was not a very nuanced treatment, but I also have difficulty in going as far as you would have us go and say that the court of appeals was just applying an automatic rule, public forum, private sponsor, end of issue, because it did say that these are not automatically determinative.

Why should we find a legal error on the record that we have, including the court's opinion?

Mr. Renner: Justice Souter, the reason that we believe that there was legal error in the Sixth Circuit is because, though there were various portions of the Sixth Circuit decision which address other factors... it even mentioned the enforcement analysis... the court still pronounced as its conclusion that any private speech in a public forum is permissible.

It didn't say, any private speech which doesn't impact reasonable observers in a negative way or in a positive way with regard to their understanding of the religious nature.

It didn't say, any private speech that's accompanied by a disclaimer.

It just said, as its conclusion, that any private speech in a public forum is appropriate speech regardless of its content.

Unknown Speaker: Mr. Renner, could you... I'm not clear as to what kind of unattended displays were permitted under Ohio's law.

Did they have to be related to Christmas or Hanukkah?

It was only during the holiday season, I understand, but during that season, could the Libertarian Party have put up a display?

Mr. Renner: Justice Scalia, the answer to that question is no.

The display that was permitted at the Statehouse ground involved a long tradition of Ohio's owned and operated Christmas tree.

Once various courts of this land, including our own Sixth Circuit, and some analysis by this Court in the Allegheny case, determined that a holiday display which included both a Christmas tree and the menorah was not a purely religious display but had a holiday connotation, Ohio followed that pronouncement and permitted the erection of the menorah.

Unknown Speaker: But there was that content limitation on unattended displays.

The only unattended displays you were going to allow were those whose message pertained to the holidays, and none others.

Mr. Renner: Well--

Unknown Speaker: Can you do that?

Mr. Renner: --You're correct, Justice Scalia, the State, of course, which was making its decisions under the guidance of court determinations, had concluded that it would be an Establishment Clause violation to allow purely religious displays to be exhibited.

Unknown Speaker: I'm not talking about purely religious.

I'm talking about anything else.

Can you limit your permission for unattended displays to just those that have to do with the holiday season and for all other purposes no one can have an unattended display?

Mr. Renner: Oh, I think not, Your Honor.

If in fact displays are going to be permitted in the public forum, we think the State probably has the right to say, no displays may be presented.

Unknown Speaker: Yes.

Mr. Renner: But if displays are going to be presented--

Unknown Speaker: Right.

Mr. Renner: --then the free speech and equal access provisions would require us to provide them to all speech content.

Unknown Speaker: So the Libertarian Party could have put up an unattended display.

Mr. Renner: That would be my under... as long as it were not purely religious, Your Honor.

Unknown Speaker: I see.

Now, why wouldn't the State be worried that people would think the State was endorsing the Libertarian Party?

Mr. Renner: They might be, Your Honor.

Unknown Speaker: But that's okay.

Mr. Renner: Well, there's no proscription in the Constitution that the State may not be involved--

Unknown Speaker: The State can endorse the Libertarian Party?

Mr. Renner: --I'm not aware of a restriction.

Unknown Speaker: If you want to be a real Ohioan you should support the Libertarian Party?

They can say that?

Mr. Renner: Well, I would hope that they wouldn't, Your Honor, but I don't think it's violation of the Establishment Clause.

Unknown Speaker: They really can support a particular political party officially and say you're not... you know you're not a patriotic Ohioan if you don't vote Libertarian?

Mr. Renner: Well I--

Unknown Speaker: I wasn't aware of that.

Mr. Renner: --Well, as I'm standing here, Your Honor, I'm trying to think of what proscription in the Constitution or the Bill of Rights which would proscribe that.

It certainly would not be an Establishment Clause proscription.

Unknown Speaker: But you wouldn't worry... but in any case, you wouldn't worry about that being identified with the State--

Mr. Renner: Well--

Unknown Speaker: --by allowing it up in front of the State building?

Mr. Renner: --As the attorneys for the State of Ohio we would certainly want to review all other constitutional provisions and statutes.

Unknown Speaker: And if the Nazi Party did it I guess the legislature wouldn't worry about the Nazi Party display being associated with the State, would it?

Mr. Renner: Your Honor, to say that they wouldn't worry about it would be disingenuous.

Unknown Speaker: Well, but they have this regulation that you say permits it.

Mr. Renner: That's correct.

The regulation would not... the regulation which we have advised the board to work under would not proscribe forms of speech other than those that violate the Establishment Clause.

Unknown Speaker: Whether it's lawful or not, I find it difficult to believe that the members of the Ohio Legislature wouldn't worry about the Nazi Party being associated with the State.

Mr. Renner: I agree with that, Your Honor.

Unknown Speaker: And if they don't worry about it with the Nazi Party, I don't know why they would worry about it with the KKK or with a cross, or with a religious symbol.

It just seems implausible to me that they are really worried about the State being identified with the messages that they're allowing to be put there.

Why would they worry about it with religion and not with other things?

Mr. Renner: Well, I hope that it would be because, Your Honor, that religion has a specific qualification in the First Amendment, and I would hope that the State worries about the things that their attorneys suggest that they worry--

Unknown Speaker: Well, I'm not worried about it whether it's... it is in the First Amendment, but you also have to establish a risk of identification, and if there's a real risk of identification, I doubt whether the Ohio Legislature would say, anybody with any sort of an unpleasant message can stick it up in front of our Statehouse.

If they were really worried about identification, I doubt whether they'd do that.

Mr. Renner: --Your Honor, I think I would agree with your analysis.

As the record below indicates, the State did struggle considerably with the notion of allowing the Ku Klux Klan to rally or put up displays at the Statehouse, but they did permit them to rally.

Unknown Speaker: Mr. Renner, may I ask the other side of the coin from Justice Scalia's question?

Do you understand the rule in the Sixth Circuit, which I guess there was a case arose in Michigan before this one, to make it necessary for the State to permit the Libertarian Party to put up a sign such as you describe if they want to?

Mr. Renner: No, I don't understand it that way, Your Honor.

I--

Unknown Speaker: You don't understand the court of... the rationale of the court of appeals to require that?

Mr. Renner: --It would require that if in fact those forums of speeches were allowed to others.

Unknown Speaker: They said it's an open--

Mr. Renner: I think the State of Ohio could proscribe all unattended displays, but I think once speech is opened up, the only way that the State of Ohio could forbid any speech is if it were a violation of some other constitutional provision.

Unknown Speaker: --Well--

Mr. Renner: And that's what we assert is the problem here in this case.

Unknown Speaker: --Wasn't there testimony in the record here from a rabbi that said that a menorah was a religious symbol?

Mr. Renner: There was, Your Honor, and he testified quite vehemently that it was a purely religious symbol, as viewed by members of his faith.

Unknown Speaker: I take it your argument today is that the menorah would have to fall in the same category as the cross.

Your opening statement was that no religious symbol, and yet Ohio itself made the distinction.

Mr. Renner: It is correct, Justice Ginsburg, that Ohio made the distinction, but it was based on directives that Ohio felt had been provided to it by superior courts.

Unknown Speaker: But do I take it from your opening statement at this argument that you have now reconsidered and you... I thought you said in the beginning of your argument that no religious symbol could be in front of a building that is identified with Government.

Mr. Renner: That is our belief, Justice Ginsburg.

We are still, however, living with a decision that, as we read the Allegheny County case, that says that the menoran is not a purely religious symbol.

Unknown Speaker: Was that an opinion of the Court?

Mr. Renner: It was in the opinion--

Unknown Speaker: Did it command the votes of five justices?

Mr. Renner: --I do not believe that it did, Your Honor.

It was in the opinion of Justice Blackmun, who of course read the opinion for the Court, but I don't believe that section of it did command the five votes.

It is, however, the guidance that the State of Ohio has worked with since it was rendered.

Unknown Speaker: Does your theory ask us to presume what a reasonable observer would conclude?

Do we have to make that as some sort of an empirical inquiry in all of these cases?

Mr. Renner: Justice Kennedy, I don't believe it's necessary.

I think that our result is achieved whether we use the analysis of the endorsement test and use the analysis of a reasonable observer, or if we use the analysis of Lee v. Weisman, in which there was an indirect, coercive effect because of the mandatory nature of subjecting the school students to the prayer.

This is very much like that because the placement of this cross will automatically require many thousands of citizens to view this message, the message of the cross superimposed upon the State Capitol building, so--

Unknown Speaker: But even if we stipulate, then, that most people, certainly most reasonable people, will not conclude that the State is sponsoring or hsa anything to do with this message, that the message is still prohibited, or the message must still be suppressed?

Mr. Renner: --If it were a fact that nobody, or no reasonable people would associate the State of Ohio--

Unknown Speaker: Well, we usually in the law talk about a reasonable observer for a starting point, and I'm asking you if your theory doesn't require us to assume that a reasonable observer would attribute this message to the sponsorship of the State.

Mr. Renner: --I'm saying, Justice Kennedy, I don't think it requires that analysis.

I think... I think that analysis supports the result we urge upon the Court, because we think that a reasonable observer under these circumstances, with a message as powerful as that of an unattended cross in the presence of the State Capitol building, that there would be countless reasonable observers who would be connecting those two images--

Unknown Speaker: But if this is not a part--

Mr. Renner: --but it doesn't require that.

Unknown Speaker: --Well, then we must assume that under your theory even if a reasonable observer would not attribute this message to the State, the State still is required to suppress it.

Mr. Renner: The answer to that question, I think, Your Honor, lies in the decision of Lee v. Weisman in which the reasonable observer analysis was not required either, but--

Unknown Speaker: But that was different, because the whole assumption there was that the State was sponsoring the message, and that's not this case at all.

Mr. Renner: --Well, I would invite the Court to consider the parallels, because it was in that case, after all, private speech that was rendered by the rabbi that was in question.

Unknown Speaker: But that wasn't the assumption of the opinion.

The assumption of the opinion was that it was State-sponsored.

Mr. Renner: Well, I think the Court concluded it was State-sponsored by some fact patterns that connected the rabbi with the message, and with the school system in that case, that the rabbi was invited by the school system to give the benediction and the invocation.

Unknown Speaker: But that hasn't occurred here.

Mr. Renner: It has not, but I also do not believe, Your Honor, that Lee v. Weisman would have turned on a situation in which the rabbi called up the school and said that my daughter's graduating, may I present the invocation for the school system.

In other words, if there was--

Unknown Speaker: Was there any indication in Lee v. Weisman that a graduation is a public forum?

Mr. Renner: --Well, there is none, and we would suggest--

Unknown Speaker: And haven't you conceded that this is a public forum?

Mr. Renner: --We have conceded that it is a public forum for speeches and discussions.

We would emphasize to the Court that there is no history of private use of this plot of ground in front of the State Capitol building for attended... unattended displays other than those which were approved and supported by the State government.

Unknown Speaker: Well, are you then saying that the reasonable observer test is passed here, or are you... as distinct from saying that it need not be applied?

Mr. Renner: Oh, I think if we apply the reasonable observer test, which we encourage this Court to do, we would have to conclude that when we have a message as powerful as the cross, placed in front of a building that's recognizable as the State government--

Unknown Speaker: You're saying it meets the test.

Mr. Renner: --That's right.

Well, it meets--

Unknown Speaker: But you're not saying that the test is irrelevant to the decision of the case.

Mr. Renner: --No, I'm not, Your Honor.

I'm saying that the rule that we suggest that the Court adopt, whether the Court were to apply the endorsement analysis or were to apply the indirect coercion analysis, the fact patterns would result in this conclusion.

Unknown Speaker: What would the reasonable observer be expected to know?

Would the reasonable observer be expected to know everything that had been displayed, say for the last 12 months, the last 5 years?

Mr. Renner: No, obviously not, Mr. Chief Justice.

The reasonable observer, in fact, contrary to what was said in the Sixth Circuit, that a reasonable observer knows all relevant facts, we submit that a reasonable observer is a common man, an average man that is not either a hypothetical dolt, as suggested in the Sixth Circuit, or one that--

Unknown Speaker: Does a reasonable person know how to read, though, do you suppose?

Mr. Renner: --I think most of them certainly would.

Unknown Speaker: I would think so, and they can read the disclaimer, can they not?

Mr. Renner: They can read the disclaimer if, Justice O'Connor, they're close enough to assemble to be able to see the disclaimer.

Unknown Speaker: I just think your argument is so farfetched it's just hard to bring it down to reality, to the real world.

Here is this thing with a sign that says, this isn't Government sponsored--

Mr. Renner: Well--

Unknown Speaker: --and the board has every power to protect itself by any reasonable regulation, and yet it comes here arguing for this remarkable proposition to suppress speech in a discriminatory fashion.

I just think your argument falls short of what this Court's cases have required.

Mr. Renner: --If I may, Justice O'Connor, discuss the notion of the reasonable observer who can read and, under the fact patterns of this case, what we have is a 10-foot high cross displayed in the middle of the Statehouse grounds surrounded by 8 to 10 25-story or higher buildings from which people can observe this scene of the Statehouse and the cross at distances far greater than they are capable of reading any disclaimer.

This--

Unknown Speaker: Mr. Renner, can you clarify, because the record at one point refers to this as a 10-acre area, and in another place it's just one block.

What are we talking about?

What is this area, and how close is the association?

How close are these symbols?

Mr. Renner: --Your Honor, I will try to describe this as visually as I can paint with words.

The Capitol Square is nearly a square parcel of land.

It comprises a total of approximately 10 acres.

A large portion of that is consumed directly in the middle by the State Capitol building of the State of Ohio.

Directly to its east, on the eastern portion, is what is called an annex, or now the Senate office building, which is connected to that and uses up most of the ground to the east of the building.

To the west of the building is the front of the Capitol.

It faces the main street in the City of Columbus, and it is probably 500 feet in width and probably 300 feet from the street to the Capitol building.

It is this location that the government has used to display all of its unattended displays.

That's where our statues are, where our flags are, where our unattended messages from the government of the State of Ohio are positioned, and it is in this area, in a grassy portion... there are several quadrants surrounded by sidewalks, grassy portions of this plaza.

In the middle of one of those grassy portions is where the cross was placed.

Unknown Speaker: How far was it from high street?

Mr. Renner: Approximately 100 feet, Your Honor.

Unknown Speaker: Mr. Renner--

--Are you arguing... and I hadn't perceived this before... that because the government has in the past customarily used this area to display its messages, therefore a reasonable observer would say if the message is displayed there, it must be the government's?

If so, what are the other messages that... or displays that the government has placed there that would lead to that inference?

Mr. Renner: Well, Your Honor, first of all I would refer to unattended displays that were put up there on a temporary basis, such as the United Way thermometer.

Unknown Speaker: Well, you mentioned such as, and I don't mean to be picky, but do we get beyond such as?

Mr. Renner: We don't.

Unknown Speaker: The thermometer always comes up, but is there anything else?

[Laughter]

Mr. Renner: We don't get beyond it, Your Honor.

The history of unattended displays here includes those permanently displayed by the government.

The United Way--

Unknown Speaker: Well, it means the Christmas tree, it means the thermometer, and I guess after Allegheny it means the menorah next to the Christmas tree.

Mr. Renner: --That is correct, Your Honor.

Unknown Speaker: And the menorah may or may not be identified with the Government--

Mr. Renner: And that--

Unknown Speaker: --but do we have any other factual premises from which to draw that?

Mr. Renner: --We do not, and if I might add, the one testimony that we have in the record of a witness called by the respondents indicated that when he viewed the thermometer, he viewed this as government support for the thermometer.

Our premise is that in this context, in this location which is so predominantly historically a place where government displays its messages, that a reasonable observer will understand a message to be related to--

Unknown Speaker: How does the menorah fare under your reasonable observer test?

Mr. Renner: --The menorah has been suggested to us by courts of previous jurisdiction--

Unknown Speaker: Under your... not what some plurality opinion of this Court might say, but under the reasonable observer test.

Mr. Renner: --Well, under the reasonable observer test, we find it hard to believe that there would be very many reasonable observers who would think that a menorah is anything other than a purely religious symbol.

Unknown Speaker: Nonetheless, the board approved it.

Mr. Renner: The board approved it, Your Honor, as described before, based on the previous--

Unknown Speaker: Is it your position a reasonable observer would think it's a religious symbol sponsored by the State?

Mr. Renner: --Well, we think that it has such a favored location on a prominent position of governmental property that the only conclusion that a reasonable observer would have is that it's approved and supported--

Unknown Speaker: Mr. Renner--

Mr. Renner: --by the government.

Unknown Speaker: --May I ask you one question... excuse me.

I just want to... is it your position that you can permit the menorah while denying the cross?

Mr. Renner: That's not our position, Your Honor.

Unknown Speaker: Well, that's what it seemed to be, and I just wanted to be sure it wasn't.

Mr. Renner: No.

Our position is that we have permitted the menorah based on helpful suggestions that have been previously rendered--

[Laughter]

--that the menorah is not purely religious.

Unknown Speaker: Mr. Renner, there's just something that's inconsistent with the defense that Ohio comes up with.

You're here representing Ohio, you're an assistant attorney general for Ohio, and you're saying, this is a terrible thing if somebody puts up a sign in this location people will think that it represents the views of the State, but it's the State that has invited people to put up signs here.

If you really were worried about people confusing private messages to the State's message, you could have established this location for signs somewhere else.

But to say that, put it up here, and then say, however, not religious ones here because someone might confuse that message with our message, well, why weren't you worried about that for all other messages?

I don't understand that.

That doesn't seem reasonable to me.

Mr. Renner: Your Honor, first of all, I'm not certain that the State has ever invited the use of this property for displays, but--

Unknown Speaker: You said that any display could go up.

Mr. Renner: --I'm saying that we, based on analysis of equal access, that we would not deny any display based on speech content, but I would put out that when the United Way barometer went up, it went up with the approval of the State of Ohio, and people saw it as having the approval of the State of Ohio, and that was permissible because the State of Ohio is not required constitutionally not to support the United Way.

Unknown Speaker: Just close it to the public forum and you would have no problem.

Mr. Renner: That's correct, Your Honor, but we're not required to do that, because the First Amendment only requires us to forestall from participating in religious--

Unknown Speaker: But it doesn't seem reasonable to me to both do it and then come in complaining about people's messages being mistaken for those of the State when you have invited people, all people, not just religious groups but all people to come in and stick their message up in front of the Statehouse.

Mr. Renner: --I don't think that's an accurate description of what the State of Ohio--

Unknown Speaker: Have you invited anybody to put a message up whose message you disagree with?

Mr. Renner: --I don't know that we've ever invited anybody to put a message up.

Unknown Speaker: Well, have you permitted anybody to put a message up whose message you disagree with?

Mr. Renner: We've only permitted United Way--

Unknown Speaker: Everything you've done is consistent with the view--

Mr. Renner: --No.

The answer is no.

Unknown Speaker: --that whenever it's there you... people will think you endorse it, is that right?

Mr. Renner: That's correct, Your Honor, and I'd like to preserve the remainder of my time, if I may.

Unknown Speaker: I'd like to ask you one quick question, please.

Could you just repeat like in 30 seconds or very briefly, what... I quite agree with you, I don't see how you could have a menorah and not have a cross.

I don't really... I understand the difficulty of finding a distinction, so you'd say, don't have either.

I see the picture, and I can understand you say, gee, people will think this cross right in front of the Statehouse is a State cross, but what I don't... that's your argument, all right.

But what's the legal test that will say whether it should be back 10 feet, 20 feet, 30 feet?

What is the legal test?

It sounds as if the lower courts did apply a reasonable observer test.

Are you disagreeing with their application of it?

Mr. Renner: Oh, absolutely.

Unknown Speaker: What is this Court supposed to do, in your opinion?

Is this Court supposed to say, I've never been to this square.

I don't know if this photograph really telescopes distances.

What do you want us to do?

Mr. Renner: Your Honor, I want you to instruct the Sixth Circuit that if they're going to apply a reasonable observer test and a public forum notion they still must determine what a reasonable observer would see as the message from that public forum.

They must determine whether the... is this a State message or a private message?

They must not simply assume that because it's in a private forum everybody... in a public forum, everybody is going to know it's private speech.

Unknown Speaker: Thank you, Mr. Renner.

Mr. Renner: Thank you, Your Honor.

Unknown Speaker: Mr. Wolman, we'll hear from you.

Argument of Benson A. Wolman

Mr. Wolman: Mr. Chief Justice, and may it please the Court:

The State has chosen to recast some of the events that have occurred in this matter.

The record does not support the notion that the menorah and the United Way thermometer were the only items there.

The district judge in his finding of fact number 13 specifically noted that the United Way thermometer and booths and arts festival displays, in addition to the menorah and the State's tree, were examples.

That's the word the district judge used based on his findings, based on his familiarity with the particular setting.

What is before the Court, we believe, is that here we have a quintessential public forum, a public forum in which the State has permitted a variety of displays, and those displays suddenly the State chooses to confine.

Suddenly it chooses to say, my client's symbol shall not be there, and it relies upon its claim of Establishment Clause.

Unknown Speaker: Mr. Wolman, is this an all-purpose public forum at all times?

That is, as I understood it, unattended displays have only been allowed during the holiday season.

Am I correct in that?

Mr. Wolman: No, Justice Scalia.

In fact, the record here reflects that such things as the arts festival, which were not held during winter weather, and which there were displays and booths, those, for instance, were in the summer, and there's no--

Unknown Speaker: I said unattended displays.

I assume these merchants did not walk away and leave their wares just sitting there.

Mr. Wolman: --That may be during the daytime, but the unattended displays of art have appeared there overnight.

Those are not just fold up the tents and leave.

Nonetheless, there were... the United Way display was to the best of everyone's understanding not a part of any holiday seasonal display, so it was a year-round matter, and what we have here is the State suddenly announcing a new rule, a new rule not having previously precluded any display from being there.

The record doesn't reflect any given instance where that happened.

The new rule we think clearly violates the precedents of this Court going back a substantial period, and even in the modern era, Larson v. Valente as an example, where the Court had held that where there might be a compelling interest in the State to not violate the Establishment Clause, nonetheless the State has a duty to use mechanisms, mechanisms so as to preserve freedom of expression, mechanisms that are, to use the Court's language, closely fitted to the circumstances.

Unknown Speaker: Well, Mr. Wolman, do you concede that reasonable time, place, and manner regulations can be adopted by the board, or the city--

Mr. Wolman: Yes, Justice O'Connor.

Unknown Speaker: --for the use of this area?

Mr. Wolman: Yes, Justice O'Connor.

Unknown Speaker: And would one such possibility be no unattended displays?

Mr. Wolman: One possibility might be no unattended displays at any time, including religious and nonreligious.

We would maintain that they could say, no unattended displays so long as there was some legitimate reason for extracting that part of the speech of the... speech in that forum from what it is at present.

Unknown Speaker: And I suppose they could designate a certain smaller area of the open space for use by anyone who has a display.

Mr. Wolman: They could indeed.

Unknown Speaker: Could a reason be that they didn't want the Ku Klux Klan to get in on the act?

Mr. Wolman: There is substantial evidence in the record to suggest that, Justice Kennedy.

It could well be.

The State did initially have public statements and discussions regarding that it did not wish to have the Klan display.

Unknown Speaker: Could that be a legitimate reason for adopting a rule prohibiting all unattended displays?

Mr. Wolman: No, Justice Kennedy.

Unknown Speaker: Why not?

A perfectly valid regulation can be passed from a number of motives, and it seems to me if the State decides, you know, we're getting a lot of flack from people who see this Klan display up here of the cross, and we're taking heat from it, and we realize we can't just ban the Klan's cross, but we're going to ban everything and just avoid the problem.

Why would that raise a constitutional question?

Mr. Wolman: We believe that when there is a traditional public forum, as there is in this case, the State cannot be in the position, as it did in this case, of making ad hoc willy nilly judgments.

Unknown Speaker: Well, but I'm not talking about an ad hoc willy nilly judgment.

I'm talking about a State decision that we are simply not going to have any unattended displays at any time in the future.

It's pulling in the limits of the forum.

Mr. Wolman: It could pull in the limits of the forum.

We believe it ought not to be doing so for any unholy... any type of unholy reason.

Unknown Speaker: But my question is, suppose, following up the Chief Justice's question, the Commission says, we have had for years a Christmas tree and a menorah.

Now we have a sign that is very controversial.

It's a symbol of hate to many people.

The only way we can stop this is to have a new rule, no unattended displays.

Is that constitutionally permissible?

Mr. Wolman: We believe not.

We believe that--

Unknown Speaker: So that once you have this rule, the State in perpetuity, or at least for the reasonable future, has to allow the Ku Klux Klan cross?

Mr. Wolman: --No, Justice Kennedy.

We believe that time, place, and manner restrictions must be reasonable.

The jurisprudence of this Court has for decades held that time, place, and manner restrictions, reasonable time, place, and manner restrictions are appropriate, but should not be content-based.

We do maintain that the State could, indeed, exclude all unattended displays.

Unknown Speaker: Why are you... let me ask you a question about that content-based... supposing the State regarded the Capitol grounds as something like a very giant bulletin board that they put in their front hall.

Could they not say, we will only allow messages to go up there that the State in general endorses, like some kind of a poster saying don't smoke, or don't drink, or contribute to the United Way, and so forth, things like that that are not very controversial?

Could they limit the forum in that way, by content but only those things the State thinks are... that a sound public policy, it's bipartisan and the rest, would support?

Mr. Wolman: And, Justice Stevens, yes, in that particular hypothetical example, they are not looking to the content of individual speakers.

They are withdrawing the whole area as a public forum and just labeling it as a State area.

Unknown Speaker: Is that right?

I mean, you think that's an innocuous limitation?

An innocuous limitation is a limitation to only... that kind of speech that the State likes?

Mr. Wolman: Well, frankly--

Unknown Speaker: I think that's absolutely the worst kind of limitation.

Mr. Wolman: --Justice Scalia, we do not find that acceptable.

We believe that this is a public forum area.

There's no question in my mind that the entire Statehouse grounds could not be withdrawn from--

Unknown Speaker: Mr. Wolman, do you believe the Establishment Clause has nothing to say here?

You have answered the question so far that you can't distinguish between the political message and the religious message, certainly not one religion and another.

Mr. Renner seemed to be saying, well, we have to be a little extra concerned about the endorsement notion because there's an Establishment Clause that we have to do something with.

How do you fit the Establishment Clause into the way you view this question?

Mr. Wolman: --Justice Ginsburg, we believe that the Establishment Clause clearly creates a legitimate interest for the State to make an inquiry.

When you have a public forum, we do acknowledge the State has a legitimate interest in honoring the Establishment Clause and following its commands.

In this particular instance and in general the State makes a major mistake.

The Establishment Clause is to be read along with the Free Exercise Clause and the other expression clauses of the First Amendment.

We believe the Establishment Clause and the Free Exercise Clause are co-guarantors of religious liberty.

It was not... the Establishment Clause was not designed to be hostile to religious expression.

Unknown Speaker: Well, could we bring it down to this case, and to make it concrete, if you can focus your attention on the Second Circuit's decision in the Kaplan case, and there Judge Feinburg and one of his colleagues thought that no viewer... in that case it happened to be a menorah.

It could have been cross... no viewer, seeing this religious symbol in front of the city hall, could reasonably think that it was there without the approval of the government.

Now, we're not taking there the statement of a dolt who is not acquainted with public forum law, but two respected judges from the Second Circuit, and what do we make of that reaction?

Mr. Wolman: Justice Ginsburg, we believe that the Establishment Clause serves a very significant interest for the Society, and as applied to this case, we think the district court and, indeed, the circuit as well, properly applied the reasonable observer test.

The State's position on this would ban all religious expression in this context.

We believe the reconciliation of potentially conflicting provisions of the Constitution requires a narrowly tailored approach, closely fitted is I think the appropriate language, and in so doing, the State has all of the time, place, and manner restrictions that it customarily can use within the forum.

It can use those here.

The State can use disclaimers if it feels it becomes necessary, all of those.

Unknown Speaker: You didn't ask to have this placed in the particular place.

You put it where you were told to put it, is that--

Mr. Wolman: It was not placed in a particular place.

It was placed closer to the street than to the building.

Perhaps to understand, since Mr. Renner made reference to the exhibit in their petition for cert, I would encourage you in our brief on the merits to look at supplemental exhibit 106 at the very end.

That, I think, gives you the kind of display.

The Klan cross was not up at that moment.

It had been vandalized.

But you can see other crosses, little ones, that were there, too.

I appreciate the State's photography from a low angle, shooting upward.

We, of course, engaged in distant photography.

Unknown Speaker: --But you wouldn't have any... you didn't say, we must have it at this location.

Mr. Wolman: No, not at all.

The State could have said where, if it applied that to all symbols.

Unknown Speaker: As far as the location and the size of the sign, you--

Mr. Wolman: The State didn't insist on a sign of any particular size.

The State was given--

Unknown Speaker: --Could it have?

Mr. Wolman: --It could have.

Unknown Speaker: Could it have said, we want this sign to be not of cardboard, we want it to be legible, large letters... could it have said that?

Mr. Wolman: It could have, and on the facts in this case, it took so long for the processes to go forward my clients very speedily put together their symbol and the disclaimer after the district court ruled a couple of days before Christmas.

Unknown Speaker: How about the size of the religious symbol?

Could the State have said, we will allow these symbols but not so that they overwhelm the space, or dictate a limit on the size?

Mr. Wolman: Justice Ginsburg, the State may well have limitations on size of any of the displays within the forum, and if it ultimately became necessary, in order to serve a compelling State interest of Establishment Clause protection, the State could have suggested limitations.

As it was, on the record in this case you had the menorah, which was 14-feet high across, 10-feet high, a Christmas tree at a distance which was 20-feet high.

Unknown Speaker: Mr. Wolman, I confess not to understand your argument, how you wish us to decide this case.

I had thought that the principle you would espouse was the Lamb's Chapel principle, that if the State does this for all others it is no violation of the Establishment Clause to treat religion the same way as others.

Is that what you're appealing to?

Mr. Wolman: That is correct.

Unknown Speaker: But you've mentioned some case-by-case evaluation.

How does that fit with case-by-case evaluation?

Do you want us to evaluate, case by case, whether there's too much identification with the Statehouse, or do you want us to simply say, if you do it for everybody else, you have to do it for religion?

Which is the approach you're urging?

Mr. Wolman: Justice Scalia, we believe that presumptively the speech should be treated... religious speech should be treated the same, presumptively, but--

Unknown Speaker: But not necessarily.

Mr. Wolman: --But not an irrebuttable presumption.

Unknown Speaker: I see.

Mr. Wolman: In other words, there may--

Unknown Speaker: So maybe if I thought this is too closely associated with the State Capitol, I... it's just a factual matter, whether I think the crosses are too close to the Capitol, and if they are, then even though you're allowing other speech, the cross can be excluded.

Mr. Wolman: --No, not excluded, Justice Scalia.

The State could impose time, place, and manner restrictions and take a variety of measures, not exclusions.

Unknown Speaker: But not exclusions.

Then it is not a case-by-case evaluation you're urging on us.

Mr. Wolman: No, it... well--

Unknown Speaker: It is, or it isn't?

Mr. Wolman: --Justice Scalia--

Unknown Speaker: I'm talking about exclusion.

I'm not talking about... let's leave time, place, and manner out of here.

Mr. Wolman: --Exclusion, you're absolutely correct, is not a case-by-case.

Unknown Speaker: If you allow others to do it, you're saying you have to allow crosses there.

Mr. Wolman: That's correct, and time, place, and manner restrictions might be appropriate in terms of, if there is that overwhelming appearance of endorsement that the State seems so worried--

Unknown Speaker: Well, Mr. Wolman, that's what I thought you had been getting at before, and I guess you've relinquished this position if it was yours, but let me just put it forward and get your response to it.

Let's assume that we do have something like a Lamb's Chapel situation.

It seems to me one of the characteristics of the Lamb's Chapel situation is that the use that has been allowed of the public facilities, whatever they may be, has been sufficiently nonselective and universal that sort of everybody knows that there is no endorsement implication when suddenly a religious group comes along and says, yes, we want to have a meeting in this room, too.

I thought you were leaving open the door, however, to a situation in which the religious use is in some visual or some other way so remarkable, or so different from, in some sense different from the prior nonreligious uses, that somebody would not necessarily know that there was no endorsement here.

And in a case like that, I thought you were leaving the door open to a reasonable observer kind of analysis, and I thought, so in that sense you're allowing a case-by-case, or the possibility of a case-by-case exception, even though you accept as a general, or propose as a general rule the Lamb's Chapel analysis.

Did I misunderstand you in that respect?

Mr. Wolman: --I think not.

I think I was stating, one hopes sufficiently articulated, that when there is this tradition, as in Lamb's Chapel, when there is this understanding of the access to the forum, that reasonable observers would understand the nature of the forum.

Unknown Speaker: So you've retracted the answer you gave me, in other words.

Mr. Wolman: No.

Unknown Speaker: Right?

Mr. Wolman: No, I believe not, Justice--

Unknown Speaker: It has to be one or the other.

We're not talking about time, place, and manner.

We're talking about, having made the determination that you let other people do it, must you let religious people do it, and I thought your answer to me was yes, but you're answer to Justice Souter--

Mr. Wolman: --No.

Unknown Speaker: --is not necessarily.

If it's, you know, a reasonable observer would confuse it with the State, then you don't have to let them do it.

Mr. Wolman: No, Justice Scalia.

The reasonable observer approach does not justify a ban.

The reasonable observer approach, that approach may only justify the use of appropriate time, place, and manner devices.

Unknown Speaker: So that means there would be no content regulation.

Does that mean, under the history of this particular public forum, that if I came in and asked you for an injunction requiring you to allow me to put up a sign, "Vote for Ceorge Bush", someone that Ohio did not endorse, they would have to allow that sign in that forum?

Mr. Wolman: I believe that the State rules do not prohibit that, and that the State--

Unknown Speaker: So the answer is yes.

Mr. Wolman: --Yes.

Unknown Speaker: They would have to allow that.

They'd have to allow political campaigning on the... by--

Mr. Wolman: That's correct.

Unknown Speaker: --Has that ever been done?

Mr. Wolman: I do not know if that--

Unknown Speaker: Is there anything in the record suggesting--

Mr. Wolman: --I don't know of anything specifically on that in the record.

There was, after all of this, a candidate for Governor who chose to camp out for roughly a month on the Statehouse lawn, but of course, that would have been attended.

Unknown Speaker: --That was attended.

[Laughter]

I don't wish to make you retravel ground you've already traveled, but I am still not clear as to your answer whether or not at this juncture the State could say, because there is highly unpopular speech attended to the Ku Klux Klan symbol, we are enacting a rule, no unattended symbols.

Mr. Wolman: No.

We believe that the State cannot say, because there is hostility to this symbol, we are closing it down.

That's closing it down because of--

Unknown Speaker: Could the State say that because there is controversy over religious symbols generally at Christmastime, we are going to leave the field, as it were, and prohibit all unattended displays?

Mr. Wolman: --No, Justice Kennedy.

Unknown Speaker: Well, can they abandon the public forum?

Can they terminate the public forum?

Mr. Wolman: The State cannot terminate the public forum, which... this is one of the most quintessential ever.

This is the central square, the city square.

Unknown Speaker: But is every city square in every State in the... every capitol square in every capital in the United States a public forum, and if not, why can't Ohio say, we want to be like everybody else, and not make it a public forum?

Mr. Wolman: This is in fact--

Unknown Speaker: Well, what is your position on that?

Mr. Wolman: --No.

We believe that State Capitol buildings and county buildings are traditional locations for speech and, in fact, as this Court has noted in Edwards v. South Carolina, this is one of those areas most important to have speech.

Unknown Speaker: So we can have a Ku Klux Klan cross on every Statehouse lawn in the United States?

Mr. Wolman: We could, depending on events that occurred.

Unknown Speaker: Not could, we must.

I think I see what you're getting at.

You regard the unattended as a time, place, and manner restriction.

You're saying you have to allow people to march and picket and assemble and protest there, but you don't have to allow unattended displays, is that it?

Mr. Wolman: The State, for neutral reasons, not content-based, the State could choose not to have unattended displays.

Unknown Speaker: And that's a time, place... that's a manner restriction.

Mr. Wolman: Yes.

Unknown Speaker: And is it also your position, in answer to Justice Souter and me, that the State could place a manner restriction only upon religious displays out of Establishment Clause concerns?

That is, everybody else can have an unattended display, but if, on a case-by-case basis, there's too much of a risk of associating it with the Capitol, religious groups cannot have unattended displays.

Is that what you were saying to Justice Souter?

Mr. Wolman: No, we would--

Unknown Speaker: No?

Mr. Wolman: --We would say that religious displays must be permitted, not banned.

Unknown Speaker: They're permitted.

They just have to be attended, that's all.

Mr. Wolman: No.

We're saying if there are other forms of displays, political, social, whatever those forms of displays, then the religious symbols must be permitted.

We do maintain--

Unknown Speaker: On the same rules that every other display is permitted.

In other words, you're saying everybody's got to play by the same rules.

Mr. Wolman: --Everyone has to play--

Unknown Speaker: Right.

Mr. Wolman: --by the same rules.

Unknown Speaker: And that's as far as you go, isn't it?

Mr. Wolman: Not quite.

Unknown Speaker: Well--

--Then you are saying the Establishment Clause doesn't operate.

Mr. Wolman: No.

We are saying that in those--

Unknown Speaker: It's not relevant, that--

Mr. Wolman: --Well, I think one is not--

Unknown Speaker: --But if you said, if everything is the same, the Establishment Clause doesn't apply to all speech.

Mr. Wolman: --If everything is the same, the Establishment CLause would not apply, but these things happen in different ways in different places, and everything may not be the same.

There may be some circumstance where, for instance, the State--

Unknown Speaker: Well, could you give me an instance where you could ban a religious symbol, but could not ban the thermometer?

Mr. Wolman: --I can't think--

Unknown Speaker: Or you could ban the Klan cross, but you could not ban the red cross, which people I think don't associate with religion.

Mr. Wolman: --I cannot think of an example where you could outright ban.

Unknown Speaker: So then, the Establishment Clause you say really doesn't bear on this problem.

Mr. Wolman: The Establishment Clause may bear where, if absent certain types of handling of displays it becomes necessary for some special reason, given the extraordinarily immense display as an example, it may be appropriate to have in general time, place, and manner restrictions.

Unknown Speaker: Well, Mr. Wolman, supposing you have not the State Capitol in Columbus, where you have 10 acres, but a State Capitol which has a much, much smaller grounds, and they've got some beautiful flowers planted there, and they say, you know, we're not having any displays here at all on these grounds.

There's a capital park across the street that you can go to, but we just don't have any displays, attended or unattended, on these grounds.

Is that permissible?

Mr. Wolman: That's content neutral, and it is permissible.

Unknown Speaker: Well then, why can't Ohio return to that sort of a thing even though previously it wasn't?

Mr. Wolman: It could return to it, if--

Unknown Speaker: But I thought you said they can never get out of their public forum.

Mr. Wolman: --No, I was speaking of the general public forum, slightly distinguished from displays.

If they have a content-neutral reason for not having the displays there--

Unknown Speaker: What if they just have a content-neutral rule?

Mr. Wolman: --Yes.

Unknown Speaker: Why do we have to inquire into their motive why they have a content-neutral rule?

Mr. Wolman: If they do have a content-neutral rule, then, indeed, they could exclude unattended displays from the public forum, for a variety of reasons.

I mean, it may be that unattended at night creates problems.

People might walk into them, lighting, there's all kinds of reasons one can come up with why--

Unknown Speaker: No, they're just doing it because they just don't like the KKK thing.

It gets a lot of their citizens mad, and they say, well, if we let everybody else do it, we have to let the KKK do it, and it's not worth it.

We're just not going to have any unattended displays.

Can they do that?

Mr. Wolman: --No.

Unknown Speaker: On the other hand, if the State is broke, and it says, the only way we can balance the budget is to sell our 10-acre plot for an office building, you'd let them do that, wouldn't you?

Mr. Wolman: We would, indeed.

Unknown Speaker: So there's one circumstance in which they can totally eliminate the public forum and you agree.

[Laughter]

Mr. Wolman--

Mr. Wolman: That's absolutely correct.

Unknown Speaker: --Mr. Wolman... I hate to interrupt you, but I'd like to ask just a couple of questions, if I may.

You say that this is a religious symbol.

What is the religion of the Klan?

Mr. Wolman: The Klan members hold themselves out in this record as Christians.

They hold themselves out as the symbol being not just a symbol of their faith, but a symbol of history, a symbol of history that many of us may find, at the very least, disquieting.

Nonetheless, it reflects a symbol of the Confederate cross, the Scottish clans of the 1300's... it's not just a religious symbol.

It has a variety of meanings, as do most types of symbols.

Unknown Speaker: But I think the argument... the reason I ask is so much of the argument is based on the assumption that this cross is a religious symbol.

Now, is there testimony to the effect that it is a religious symbol.

Mr. Wolman: There is testimony as to the mixed purpose, and indeed, not just testimony, but the disclaimer itself specifically recited... it's at page 12 of our brief in chief.

The disclaimer itself specifically said it was to express respect for the holiday season and to in fact test the government of the State of Ohio, challenge them over their discriminatory application, granting the application of the menorah.

Unknown Speaker: Well, if it has a... and I don't know what the mix is.

Let's say, 50-50, 50 whatever other reasons, and 50 religious, then how does that become a free exercise problem?

Mr. Wolman: Well, we believe that free exercise is not a problem.

We believe that--

Unknown Speaker: Well, I mean, it's a problem in this case.

Mr. Wolman: --In this case, the State is asserting that the Establishment Clause bans it, and we think they're totally off-base in doing it.

Unknown Speaker: Well, now, with that said, what is... what does a burning cross symbolize?

Mr. Wolman: A burning cross, I believe, would symbolize the general orientation of the Ku Klux Klan against racial minorities, not just you, ethnic minorities, myself and others, a whole variety of purposes.

Unknown Speaker: So there are some people... as I understand the record, there were some concerns that some of the citizens of Columbus, when they saw that, could actually see fire on that cross.

Mr. Wolman: Could see fire, you mean figuratively?

Unknown Speaker: That's right.

Mr. Wolman: Perhaps some could.

The record here indicates, though, there were no security issues.

The judge specifically--

Unknown Speaker: But doesn't the record suggest, though, that there was some concern that people would see more than the religious symbol in that cross?

Mr. Wolman: --Yes, I think that's true, and that's a political message, and one very much protected by the Free Speech Clause.

Unknown Speaker: But that message doesn't implicate the Establishment Clause.

Mr. Wolman: We believe not.

The political message does not.

Unknown Speaker: Do you think that the political... with respect to the cross, that the political message for the Klan overwhelms the religious free exercise considerations, that if someone... if I said that a member of the Ku Klux Klan is carrying a cross down Pennsyivania Avenue, would the average person, or the reasonable person, think that that, that the Klan is engaged in an exercise of religion, or a political statement?

Mr. Wolman: My own personal views, but not in the record, are that I would view it as mostly a political statement, but we... and in fact we believe that the State has used the Establishment Clause as a make-weight in this matter.

The Establishment Clause is not irrelevant, but we think that it has been--

Unknown Speaker: So we're shoe-horning a political case into the religious component of the First Amendment.

Mr. Wolman: --We believe the State has done just that.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Wolman.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Rosenberger v. University of Virginia - Oral Argument

Fri, 09 Jan 2009 14:49:58 +0000

Case:

Rosenberger v. University of Virginia

Media File:

94-329_19950301-argument.mp3

Related Transcript:

1994_94_329_argument.xml

Transcript:

Argument of Michael W. McConnell

Chief Justice Rehnquist: We'll hear argument now in Number 94-329, Ronald W. Rosenberger v. The Rector and Visitors of the University of Virginia.

Mr. McConnell.

Mr. McConnell: Mr. Chief Justice, and may it please the Court:

It is common ground in this case that if a group of students satisfied all of the objective eligibility requirements to form a student newspaper, or in the terms of the university guidelines, a student news, information, opinion, entertainment, or academic communications media group, that they could not be excluded from funding under the guidelines simply because they espouse a controversial or otherwise political, ideological, philosophical position of a secular sort.

Thus, if my clients this morning were the SDS, if they were vegetarians, if they were members of the Federalist Society, or black separatists, or whatever, there would be no need to be here this morning.

Justice Scalia: What if they were Republicans?

Justice Stevens: That's just the question I was going to ask.

[Laughter]

Mr. McConnell: Well, then I'll ask Democrats, just to make it--

[Laughter]

Your Honor, even if they were Republicans or Democrats, they would not be excluded, because under the university's guidelines, an otherwise eligible organization is not excluded merely because it espouses political viewpoints within its activities, no matter how unpopular those may be.

Your Honor, this case is different because my clients are not the SDS or the Republicans, they are... their orientation is religious.

Justice Stevens: You have to help me a little more on this question.

I thought... I don't have it in front of me.

I thought there was a provision that did exclude political groups such as Republicans and Democrats.

Am I wrong on that?

Mr. McConnell: Your Honor, there are two relevant exclusions for political groups.

One of those is for political organizations, and it might very well be that an organization set up affiliated with the Republican or Democratic Party could be excluded at the University of Virginia on that ground.

Of course, that is not applicable here.

My clients are not affiliated with any national or other religious organization.

Justice Stevens: Would not the rule that you are arguing for entitle such a political group also to get funding?

Mr. McConnell: Your Honor, the guidelines expressly provide, and I refer to page 66... 65 to 66a of the appendix to the petition.

The rules specifically provide that these restrictions on funding political activities are not intended to preclude funding of any otherwise eligible student organization which espouses particular positions or ideological viewpoints, including those that may be unpopular, or that are not generally accepted.

As I understand this rule, Your Honor, the point is that if there's an organization that is simply engaging in electioneering, or lobbying, which are much more narrow... much narrower categories than the espousal of a viewpoint, that such groups can be excluded, but groups cannot be excluded because they are expressing even controversial political viewpoints in a student newspaper.

Justice Scalia: As I understand it, Mr. McConnell, there are two bases for exclusion of religious publications.

One is if the organization practices religion... I mean, if it's a prayer group, or something like that... and then there's a separate one if the publication exhibits religious belief?

Mr. McConnell: That's right, Your Honor, and there's been no--

Justice Scalia: And the latter does not apply to the political exclusion.

If you exhibit the belief of a Republican, your publication is not necessarily excluded, although if you are a Republican, Young Republicans or something like that, you would be excluded.

Mr. McConnell: --That's exactly correct.

Justice Scalia: Whereas for religions, if you are either a religious group or you exhibit religious belief, you're out.

Mr. McConnell: That's correct, and there's been no claim in this case that my clients are a religious organization.

Justice Stevens: Mr. McConnell, the religious provision to which Justice Scalia refers is an activity which primarily promotes or manifests a political belief in and about a deity or an ultimate reality.

That's the provision you say is the equivalent of exhibiting.

Mr. McConnell: Exactly.

Justice Stevens: Yes, I see, and the political one is an organization primarily involved, and so forth and so on.

I don't see the dramatic difference between the two provisions that you rely on.

Mr. McConnell: The difference is the language that I was just reading a moment ago, which excludes from the definition of political activities the mere, 65a to 66a, very top of the page of 66a, are not intended to include funding, preclude funding of any otherwise eligible student organization which 3) espouses particular positions or ideological viewpoints.

Unknown Speaker: Yes, but they're not otherwise eligible, if they fall within the political organization--

Mr. McConnell: By otherwise eligible, I assume Your Honor, that they're referring to the criteria for being a news, information, opinion, entertainment, or academic media group.

I might add here, I'm not sure that this is--

Justice Scalia: --You acknowledge that the Young Republicans would still be excluded, that that exception would not let the Young Republicans run a newspaper that espouses Republican views.

They would be excluded as a Republican political organization, no?

Mr. McConnell: --Your Honor, whether the... the Young Republicans would presumably be a political organization, but that is not... my clients have not been excluded because they are a religious organization.

They are not a religious organization.

Justice Scalia: I understand.

I'm just asking about the Young Republicans.

You acknowledge the Young Republicans would not be able to publish a magazine of Republican viewpoints.

Mr. McConnell: Under the guidelines, that's exactly correct.

Justice Scalia: But any other organization, if it's not a Republican organization, would be?

Mr. McConnell: That's right, and the very same students could get together and put out a newspaper.

In fact, the Virginia Advocate, which is a funded organization, looks very much like the sort of newspaper the Young Republicans would publish, and that is funded.

Justice Stevens: Let me make sure I understand you.

You agree that a Republican publication would be prohibited by the guidelines.

Do you also agree that it may constitutionally be prohibited by the guidelines?

Mr. McConnell: Your Honor, the line that we believe that this Court's cases establish, and that the First Amendment imposes, is a line that prohibits viewpoint discrimination.

If the university is excluding all political organizations whatever their orientation or persuasion, our position is that that is not unconstitutional.

Let me just point--

Justice Souter: Well, do you agree that it would not be unconstitutional to deny funding to a publication that says, vote Republican in the next election?

Mr. McConnell: --Your Honor, if that rule were in fact applied to all newspapers, that prohibited all endorsements of political candidates, we would not claim that that is unconstitutional.

Of course, that is not the guideline.

In fact, student newspapers regularly endorse candidates for office, and let me point out here that this case is extraordinarily--

Justice Souter: Those other newspapers are not affiliated with an identified partisan organization, I suppose, or at least in theory they're not.

Mr. McConnell: --Just as my clients are not identified with any religious denomination or other organization.

Let me point out--

Justice Kennedy: Suppose... just on this one point, suppose the religious newspaper engaged in soliciting members, proselytizing, coupons to fill out and return that are contained in the newspaper, does that change the case, or make it a more difficult case?

Mr. McConnell: --I don't know, Your Honor.

I assume that any student activity, and part of the student activity is usually recruiting other members, and I wouldn't think that Wide Awake would be any more precluded from inviting others to join in Wide Awake's activity than any other student group, and of course--

Justice Kennedy: That cannot be equated with the political restrictions against campaigning.

Mr. McConnell: --Well, again I don't think that the Virginia Advocate is precluded from trying to persuade students to join the Virginia Advocate, or to join in its causes, and--

Justice Souter: Yes, but the Virginia Advocate is not a church.

Mr. McConnell: --Wide Awake is also not a church, Your Honor.

Justice Souter: No, but I mean, going back to Justice Kennedy's question.

If they were circulating coupons, sign up for membership in the First Presbyterian Church, that sort of thing.

Mr. McConnell: Well, Your Honor--

Justice Souter: It's one thing... it seems to me the distinction is made, it's one thing to recruit members of one's organization, as such, and it's another thing to recruit adherence to God, to religious tenets.

Mr. McConnell: --Your Honor, if you look at Wide Awake magazine--

Justice Souter: You admit the distinction, don't you?

Mr. McConnell: --Your Honor, I'm not at all sure that a distinction of that sort would be administrable.

I'm not... I don't know how you can tell the difference.

There... one is not converted to membership in God.

There is a world view which is theistic in nature.

One is either convinced of the truth of that world view, or one is not.

Just as there is a Marxist world view, there is a libertarian world view, there are a number of world views, and one is either convinced of the truth of those world views or not, and those world views have application to numerous issues, such as the questions that are addressed in this magazine.

Justice O'Connor: Well, Mr. McConnell, may I ask you a question that I think fits into this same line of inquiry?

You argue for an overarching principle of neutrality, and you say, if we will look at the program and see if it's neutral, that should be the test, and do you think that means that Government must never single out religion in legislating, or do you think that the constitutionality of a program under the Establishment Clause depends on its effects, its overall effects with respect to religion?

Mr. McConnell: Well, Your Honor, I can imagine situations in which the Government might be operating according to formally neutral criteria that have such disproportionate effects that one suspects that there's a religious gerrymander going on.

Justice O'Connor: Would some of our school funding cases fall in that category, where the Court spoke in terms of well, if we support this, 95 percent of the schools that will benefit are religious schools, and so forth?

Mr. McConnell: Yes, Your Honor, and in each of the parochial school cases the Court went out of its way to point out that the category, ostensibly neutral, private schools, is a category that in fact contained overwhelmingly religious schools, and more than that, overwhelmingly religious schools of one particular religious denomination.

And I think that those cases can be understood as the Court's reaction to... not to aid which is general in nature to viewpoints of all sorts, but rather to aid which the legislature knew, everyone knew, this Court knew, was being enacted in response to the needs of a particular... to religion in general, but especially to one particular religious denomination.

Justice O'Connor: Well, so if the student publication in question were really a mechanism of getting more members for the Presbyterian Church, for example, then you think it's appropriate to look at the effects of the publication?

Mr. McConnell: Well, Your Honor no.

I think that it's appropriate to look at the effects of the Government's action.

That is, if the Government is drawing categories that have disproportionate effect, thus leaving us room to suspect that there's a religious gerrymander going on, we should look at effects in that sense, but just as in Widmar v. Vincent, this Court was not concerned with the students benefiting from free facilities at the university might try to gain members, or recruit people to the Presbyterian Church, or whatever.

All that mattered to this Court was that all groups, all student groups at the University of Missouri were being given an equality of free speech rights, and that is our position here.

I might... on this... on the question of the political groups, I just want to remind the Court of one thing.

I'm not sure that our position depends in any sense upon whether the university is allowing or disallowing the Republicans, because remember in Lamb's Chapel, two terms ago, a unanimous decision of this Court that the school... that the policy at issue, there, expressly allowed political activities as well as... and excluded religious activities.

The--

Justice Ginsburg: Mr. McConnell, may I ask you a question directed specifically to religious activities and the state of our precedent?

Is there any decision so far that has authorized a direct cash contribution from the State organ in support of a religious activity?

Mr. McConnell: --Your Honor, I think that the closest case to that is the Witters decision, in which direct cash payments were made for vocational education at the Inland Empire School for Bible for courses in biblical studies and training to become a minister.

Justice Ginsburg: Not for a purpose directed by the State, that is, vocational education, but for a pursuit that the religious group... that the group engaged in an avowedly religious activity has charted for itself.

I don't... I'm not aware of such a case.

Mr. McConnell: Well, Your Honor, in this case, the University of Virginia is not channeling money to religious groups.

It is trying to support the activity of students writing and editing and distributing newspapers.

Justice Ginsburg: Well, I just... Mr. McConnell, I just wanted to know if there was any precedent.

You gave me the case where the State was supporting vocational education, and you said, that's the closest case to this one.

Mr. McConnell: And Your Honor, I'd like to urge you that that is in fact a very close parallel, because... and there the State was supporting vocational education.

Here, the State is supporting student journalism, and in both cases the State is completely, or should be, completely indifferent as to whether the individuals who benefit or participate in those programs themselves decide to participate, to use those benefits in a way that participates in a religious activity, because the establishment--

Justice Souter: There's a distinction in this case, because the claim is that the very nature of the publication itself is an espousal of religion.

It is, in your phrase, a religious activity, so there's nothing left to chance here.

Mr. McConnell: --But, Your Honor, the very activity in Witters was a religious activity, too.

Witters was engaged in learning about... he was studying a religion, in a deeply, pervasively religious way.

The point is that the establishment--

Justice Souter: Well, is it your point that so long as the criterion for giving out the aid is at a sufficiently high level of generality that it does not identify religious purpose as its object, e.g., funds for education, funds for publications, that that is the end of the inquiry about a possible establishment violation?

Mr. McConnell: --Yes.

To use this Court's words in Texas Monthly, when a subsidy is distributed to a broad array of organizations, both religions and secular on the basis of objective criteria, the fact that some of the aid may go to religious advocacy does not violate the Establishment Clause.

Justice Scalia: Unless it's a gerrymander.

You do make that exception.

Mr. McConnell: That's right.

Justice Scalia: You could have it at a very general level, but if, in fact, the way it winds up is that all the money is going to one sect, that might be a different situation.

Mr. McConnell: But here, of course, there is an extraordinarily broad array of groups.

Justice Souter: On your criterion, then, if the State were to dispense funds for moral betterment, it could make direct cash payments to any organized religious group.

Mr. McConnell: Your Honor, if a group--

Justice Souter: Well, isn't that the--

Mr. McConnell: --I do not think--

Justice Souter: --consequence of what you just said?

You said, if the level of generality is high enough so that we know the object, absent a gerrymander, is not a peculiarly religious object, that makes it okay.

Mr. McConnell: --No, Your Honor, because in order to administer that category, money to morally uplifting groups, the Government would have to decide whether a religious group is in fact morally uplifting.

I fully agree that such an inquiry on the part--

Justice Souter: Well--

Mr. McConnell: --of the Government is unconstitutional.

Here, the only thing that the Government has to determine is--

Justice Souter: --Let's make it a little easier.

Instead of saying, as you were putting it, morally uplifting, those which simply espouse the pursuit of action based on moral grounds.

One ought to act morally responsibly.

That's the only criterion.

That isn't going to require very much by way of inquiry, and I take it on your reasoning that direct cash payments could be made to any church group on that theory.

Mr. McConnell: --Well, Your Honor, in Lamb's Chapel, the--

Justice Souter: Well, Lamb's Chapel, what about your theory?

Isn't it the case that on your theory the direct payments could be made?

Mr. McConnell: --Your Honor, so much depends upon... it depends upon the practice with which such a category was administered.

If, in fact, that meant that virtually anyone who espoused any views that was remotely related to the good life received money, I think that would be fine, but if in fact it meant that the Government was engaged in a searching, case-by-case inquiry, deciding this group promotes the moral life and this group doesn't, then that kind of selective funding I think would be unconstitutional, and religious groups could not be included, because then the Government would be putting its imprimatur upon particular religious views and saying these are good views.

Here, the only thing that's going on is that the Government has found that this is a student news, opinion, entertainment, or academic media group.

That is not an entangling form of category.

Justice O'Connor: Mr. McConnell, would your theory mean that the case of Regan v. Taxation With Representation have to be decided differently if the tax code provided that organizations engaging in religious activities would not be able to receive tax deductible contributions?

Mr. McConnell: The... where the tax code has exempted... provides tax exemptions for essentially the entire nonprofit charitable world, if there were an exclusion of charities that espoused religious views, I think that I would be here contending that that's unconstitutional.

The... as I was saying, the religious nature of the students is what makes this a case different from cases that even the university concedes are correct about prohibiting discrimination on the part of viewpoint.

Now, there are two ways in which the religious character of their viewpoint might be considered relevant.

One is the university's position, which is to draw the line between religious and nonreligious is not viewpoint discrimination.

Because it seems to me that that is plainly foreclosed by this Court's unanimous decision two terms ago in Lamb's Chapel, I would like to turn instead to the arguments not endorsed by the university today, but which were the basis of the Fourth Circuit's judgment below.

That is--

Justice Souter: Before you do that, may I just ask you one question about your understanding of the way the regulation would apply?

Would funding be denied, as the reg is written, to an organization espousing atheism?

Mr. McConnell: --Your Honor, I think it would.

Justice Breyer: What prevents the... are you saying the Constitution would prevent the university from deciding to teach Buddhism unless they also wanted to teach Hinduism, or the university's newspaper, edited by students, to decide that they want to print liberal articles but not conservative articles, or articles involving, say, Buddhists but not Hindus, or whatever?

I mean, how does that interest in a university to edit, decide how it spends its money, or decide what's important for students to hear, how does that fit in to your First Amendment analysis?

Mr. McConnell: Well, Your Honor, absolutely fundamental to our position is the distinction between the Government's own speech, either through its employees or through grantees--

Justice Breyer: These are State universities.

I'm assuming State universities.

Mr. McConnell: --Yes, but even with... Your Honor, even within the context of a State university, the State university is in some cases speaking itself, and in other cases it is providing a platform or a means for private speakers to be able to speak their own minds.

That distinction is central to our position, and it is our view that the Free Speech Clause protects private speech where the content and viewpoint are initiated by the private speakers, that it protects private speech against viewpoint-based discrimination whether it's... the speech is religious or nonreligious.

Justice O'Connor: But maybe the Government wants to sponsor and speak through the views of private people but only on subjects that the Government wants spoken about.

Mr. McConnell: Yes, Your Honor.

Unknown Speaker: And the line is pretty hard to draw, isn't it?

Mr. McConnell: Your Honor, we absolutely agree that the university, that the Government, when it chooses to present its own message through private speakers by funding those speakers on account of their espousing the Government's message, that in those cases the Government's... the Government may take a viewpoint.

It can espouse an antismoking campaign without funding a prosmoking campaign.

Justice O'Connor: Is that possibly what's going on here?

Mr. McConnell: Absolutely not, Your Honor.

The university has been completely clear that in its funding of student groups it means it does not endorse the groups, it does not agree with them, it doesn't even allow them to use the University of Virginia's logo.

It has separated itself to the maximum possible extent from the content of these groups, and of course, the groups themselves that are funded--

Justice Scalia: And a good idea, too, if you read some of them, right?

Mr. McConnell: --I--

Justice Breyer: But what they say that they're doing is, they're funding educational activities by students, and they don't want to fund noneducational activities.

Why can't they do that?

Do they have to fund every activity?

I mean, why can't they?

Mr. McConnell: --Your Honor, and they've made the further determination that the... that writing a student newspaper is an educational activity.

That is, the act of writing, editing, distributing, reading, engaging in ideas, is itself an educational activity, not because the content of the newspaper is educational, but because the activity of engaging in student journalism is itself educational.

That's why you can have an animal rights oriented newspaper, and you can have a meant-eaters oriented newspaper on the same campus.

It isn't that one of those views is better than the other, it's that the participation in this activity is itself educational.

Justice Ginsburg: Mr. McConnell, what about the university's having in mind student cases that are coming up around the country, students who say, I don't want my money, I don't want my activity fee to support something with which I disagree?

One of the amici presented those cases to us.

If this activity were to be supported, would the university not have to allow all the people who don't want their money to support a religious activity to get a deduction?

Mr. McConnell: Your Honor, the lower courts have been split on these questions, and some have said yes, but they have said yes with regard to controversial political speech, too, so that a person opposed to abortion is not required to contribute, or may get their portion of the student activity fee back that goes to the prochoice campaign.

There's been no distinction between controversial religious and political speech.

Now, other courts have upheld these programs and not allowed a right to refund on the theory that so long as the university is funding a broad array of viewpoints of all sorts that no student is being required to support any particular viewpoint, and that it's much like, you know, taxpayers supporting postal subsidies, or supporting public libraries that contain books that they don't agree with.

Justice Ginsburg: Well, what about the student who says it isn't like the post office because when we're dealing with the Establishment Clause, this Court has recognized a right that is not recognized in any other area, that is, Flast v. Cohen, where the taxpayer can challenge the use of her money to support a religious activity.

We don't allow taxpayer's challenges any place else, and so a student might say, even if I can't complaint about my dollars going to some political group with which I disagree, I can make that complaint with respect to a religious activity.

Mr. McConnell: Well, Your Honor, all the courts that have accepted this claim have in fact allowed students to object to controversial political claims, though all of the cases have involved secular speech, and in cases like Aboud in this Court, this Court has recognized a right of people not to be compelled to support secular speech with which they disagree.

In this context, religious and secular speech, it seems to me, are the same.

Now, I don't know whether the university should be required to give refunds or not.

I'd be perfectly content for objecting students to receive refunds if they object to some of the speech.

The point is that the university may not use its power to skew the marketplace of ideas at the University of Virginia by favoring some viewpoints over others.

Justice Kennedy: Mr. McConnell--

Mr. McConnell: If individual students want to do that, fine.

Justice Kennedy: --a new subject, and I know your time is about to expire.

You may want to reserve some time for rebuttal.

Is it your position that the State can never recognize that there may be a gray area where we're not sure that there's an Establishment Clause or not, and use that determination as a ground for withholding support from the activity?

Mr. McConnell: Your Honor, I wouldn't say never, but I would say that where citizens have a free speech or free press right, a constitutional right under the First Amendment, the university can't... cannot defeat that right or deny that right on the basis of some nebulous fear of violating another provision of the Constitution.

Indeed, it is not at all clear to me why one clause of the Constitution should be read to trump the other clause to begin with.

It seems to me much more sensible to take a step back and look at how the Establishment Clause and the Free Speech Clause and the Free Exercise Clause can be read as a consistent and harmonious whole, all of them designed to guarantee a neutrality between religion and its various ideological competitors in the marketplace of ideas.

So that that way, instead of having the strange situation in the Fourth Circuit where the... where my clients were held to have had a free speech right but the Establishment Clause trumps that right, instead, the enterprise of the First Amendment can be interpreted in a consistent fashion.

I would like to reserve the remainder of my time for rebuttal.

Argument of John C. Jeffries, Jr.

Chief Justice Rehnquist: Very well, Mr. McConnell.

Mr. Jeffries.

Mr. Jeffries: Mr. Chief Justice, and may it please the Court:

This case is not specifically about religion.

It is about funding, and the choices that inevitably must be made in allocating scarce resources.

Some funding decisions do not involve speech, but in a pubic university virtually all of them do.

In public education, funding speech based on content is legitimate, routine, and absolutely necessary.

Under the university guidelines--

Justice O'Connor: But not based on viewpoint, I take it.

You would agree with that.

Mr. Jeffries: --I do.

Under the university--

Justice O'Connor: So this boils down to whether this is a viewpoint case?

Mr. Jeffries: --I do think that's exactly the heart of the question, and if I may just clear up one issue that was left over from the earlier colloquy, under the university's guidelines, the definition of political activity, which is defined to mean lobbying or electioneering, and the definition of religious activities are not exactly alike, but they raise precisely the same constitutional question.

Imagine that students organized themselves in support of the President's reelection campaign, and published a Clinton reelection newspaper.

That would be an electioneering activity.

We would not fund it for that reason.

Imagine that students lobby the State legislature to pass or defeat the balanced budget amendment.

That would be a lobbying activity.

We would not fund it for that reason.

Students have a constitutional right to support the reelection of the President.

They have a constitutional right to lobby the legislature.

They have a constitutional right to advocate their religious beliefs.

All of these cases present precisely the same free speech issue, and they stand or fall on that basis.

Justice Scalia: But as I understand, Mr.... I'm sorry.

Chief Justice Rehnquist: Mr. Jeffries, take a look at... on page 66a of the petition, the number 3 parenthetical in the carryover paragraph on page... where it's talking about political activity, and apparently excepted are student organizations which espouse particular positions or ideological viewpoints.

That would not include political positions?

Mr. Jeffries: The intent of the guidelines is to allow in the political area a wide variety of point of views, and to except two fairly narrow categories, electioneering, by which I mean publication devoted expressly to an election result, hence the Clinton campaign newsletter, and lobbying legislatures.

Chief Justice Rehnquist: Well then, suppose you have a newspaper that simply espouses the Republican point of view, or the Democratic point of view.

Just as a more or less... liberal versus conservative, whatever you want to call it, but it has party identification.

Is that permitted?

Mr. Jeffries: Liberal and conservative points of view are freely permitted.

Indeed, all points of view are permitted.

The question is, which are funded--

Chief Justice Rehnquist: Yes.

Mr. Jeffries: --and the exclusion from funding would be those activities so closely allied with an election result as to be found to be electioneering.

Chief Justice Rehnquist: So that some might say the Americans For Democratic Action, or something, a liberal group which consistently supports Democratic candidates but doesn't really electioneer for them, they could be funded?

Mr. Jeffries: Yes, sir, would be eligible for funding.

Justice Scalia: Now, why is that different from a group that is not trying to recruit people to a particular Christian sect, but simply espousing the truthfulness of certain Christian doctrines, just as this other group, while not trying to get you to vote for a particular candidate, is espousing the truthfulness of that candidate's position on a lot of issues?

I don't see a distinction.

Mr. Jeffries: The guidelines make that distinction.

My point in suggesting that these raise the same constitutional issue was to say that in all three categories, electioneering, lobbying, and religious activities, the guidelines say, rights which people have a constitutional right to engage in, activities which people have a constitutional right to engage in, we nonetheless will not fund.

If that's an unconstitutional action in refusing to fund religious activities under the Free Speech Clause, it must follow that it's equally unconstitutional to refuse to fund the Clinton campaign reelection newsletter or to refuse to fund students engaged in lobbying activities under the Free Speech Clause--

Justice Scalia: I'm talking about different things.

I'm talking about refusing to fund for religious publications simply the espousal of general ideas, without identification of a particular sect, without proselytizing, whereas in the political context, so long as you don't proselytize, so long as you're not electioneering, it's okay.

Why is it... why is there that distinction?

Mr. Jeffries: --Why do the guidelines make the distinction they make?

Justice Scalia: You acknowledge that they make that distinction.

Mr. Jeffries: The guidelines--

Justice Scalia: Now, you used to say the reason they make it is, the Establishment Clause made us do it, but you're not taking that position today, right?

Mr. Jeffries: --Obviously, if the Establishment Clause forbids us from giving direct aid to religion, there is an end to the matter, but we do not stand on that ground.

We take the following position.

There is in this country a long and honored tradition of financial disengagement... again, this is a question of funding, not activities.

There is a long tradition in this country of financial disengagement between church and State.

We think it's entirely reasonable for the university to adhere to that tradition.

Justice Scalia: This is not a church, though.

I mean, if you're... you know, if your point were, we will not fund any church organization that publishes something, that's fine, but that's not what these guidelines say.

It says, any organization that espouses that viewpoint.

What's the term it uses?

Mr. Jeffries: With respect, Justice Scalia, the plaintiffs were not denied eligibility as a religious organization.

They are not a church, and they were not denied funding on that ground.

Justice Scalia: Yes.

Mr. Jeffries: They were denied funding because the publication of this magazine was found to be a religious activity, a conclusion that they have not... never contested.

Justice Scalia: Because it manifests a particular belief in or about a deity, right?

Mr. Jeffries: Because it primarily manifests a particular belief in or about a deity, yes, sir.

Justice Kennedy: But that is different from lobbying and campaigning.

Your premise that you're submitting to us is that because it is permissible to withhold funding from active campaigning in the political sphere, therefore it is permissible to hold... to withhold funding for abstract discussions of religious views, and it seems to me the two do not follow at all.

Mr. Jeffries: Well, in my judgment, Justice Kennedy, the cases on which the petitioners rely are quite consistently free speech cases.

If the Court had meant to specify something special about religion, it probably would have relied on the Free Exercise Clause, so the inference which I made is that under the Free Speech Clause, lobbying, electioneering, religious activities are all protected, and all comparably protected under the Constitution.

Justice Kennedy: But the university can say that these are not educational activities, and draw the line there.

But it doesn't follow that it can draw the further line that discussion of abstract views of religion is also prohibited.

It seems to me that that's where your parallelism breaks down.

Mr. Jeffries: It may be misleading to think of the university's policy as refusing to fund a discussion of abstract views.

The university refuses to fund religious activities.

This magazine is a proselytizing activity.

Basically, religious activity means worship services and prayer, or proselytizing, so there is little doubt that this magazine fits the university's guideline.

Justice Kennedy: Well, do you take the position that any discussion of religious views is proselytizing?

Mr. Jeffries: No, sir.

Justice Scalia: That's all your guidelines say, manifests a particular view.

If you primarily manifest a particular view relating to, in or about a deity, you're out.

Mr. Jeffries: That constitutes a religious activity.

Let me try to answer the rest of your question, if I may, Justice Scalia.

In addition to the longstanding tradition of financial disengagement between church and State, in this particular area, we feel there's a very strong concern.

By denying all religious activities university funding, we avoid having to choose among them.

How would you choose among them?

Justice Breyer: Is the giving of religious instruction a religious activity that calls... makes it outside the funding?

Mr. Jeffries: Our policy on that is exactly the policy reflected in the Religious Studies Department.

We study--

Justice Breyer: I mean, for example, if what... this magazine has articles in it that says Christianity and the five-legged stool, and then it says, for example, how you should lead a holy life, spread the Gospel, make social justice, follow the Holy Spirit, and pursue intellectual excellence, all of which are fine, but is that type of article the kind of article that falls outside funding, and why, precisely?

Mr. Jeffries: --Funding decisions, Justice Breyer, are not made on the basis of articles or columns or particular essays.

Justice Breyer: No, but I mean, the character of the magazine.

Mr. Jeffries: Yes, sir.

Justice Breyer: If the magazine did not have such articles, but only said, we have a religious point of view involving certain social issues, certain educational issues.

Would it then qualify for funding?

I'm trying to get the distinction as to what makes it a religious activity and what doesn't--

Mr. Jeffries: The distinction--

Justice Breyer: --in terms of this magazine.

Mr. Jeffries: --On these facts, we think that distinction is clear.

A magazine which is devoted in all of its content to proselytizing specific religious beliefs is a religious activity under the guidelines.

Justice Scalia: I don't know what you mean by proselytizing.

That's not what the guideline says.

It says, manifests, promotes or manifests.

Now, suppose you had a magazine that just said, we want to set forth the Christian or the Muslim or the Jewish point of view on social issues.

It's called, Commentary.

You know--

[Laughter]

--Student Commentary, or something like that.

It's all about social issues, but it intends to bring a distinctively, to manifest a distinctively religious point of view about all the social issues.

Wouldn't that be covered by you guideline?

Mr. Jeffries: Let me answer that question this way.

In a standard which depends significantly on the word, primarily... the university guidelines does--

Justice Scalia: Yes.

Mr. Jeffries: --there are inevitably questions of degree, and there may well be close cases, and there may well be a line-drawing problem down the road.

Now, I will say, we've not had that problem before this litigation.

But in this case, the fundamentally, consistently, in the word of the Fourth Circuit, the unflaggingly religious character of the publication has never been contested or denied.

Justice Kennedy: Mr. Jeffries, suppose that a student newspaper decides that regular columns are good for the newspaper.

Readers like them.

Mr. Jeffries: Yes, sir.

Justice Kennedy: And it said, we want good writers, and we want four regular columns, and they have a survey of the best writers, and one of them is a religious writer, a Christian writer, and that's all he writes about in the column.

Can the university promulgate a guideline to withdraw funding by reason of the printing of that column?

Mr. Jeffries: We have not attempted to promulgate such a guideline.

Justice Kennedy: Can the university constitutionally do it under the First Amendment?

Mr. Jeffries: I doubt it.

Justice Kennedy: Why is this case any different?

Mr. Jeffries: We have... the standard, as I see, under the decisions of this Court, is basically a standard of reasonableness.

Public money cannot be a public forum.

There cannot be a right of access to the budget of the University of Virginia.

So the standard is that of Perry Education Association and other cases, and that standard says that the approach must be reasonable, and it must not reflect an effort to suppress expression because public officials oppose the speaker's view.

Chief Justice Rehnquist: But isn't there a difference between when the university decides, you know, what kinds of subjects to teach, say, in its Department of Religion, where it's putting out its own message, and where the university says, we're going to fund all sorts of student activities, and we're going to disassociate ourselves from their message?

Mr. Jeffries: Mr. Chief Justice, the university does not fund all sorts of student activities.

They fund some broad categories, and there are other broad categories that are excluded.

The funds we're talking about here are raised by mandatory fees.

They're exactly like tuition and taxes.

They're distributed by a budgetary process, by an official decisionmaking process, just like money raised from tuition and taxes.

Chief Justice Rehnquist: But they aren't devoted to espousing something that might be called, the university's point of view, or the university's idea of what education should be.

Mr. Jeffries: That is entirely correct.

They're not... well, the first part is entirely correct.

They are not devoted to espousing a particular point of view.

They are devoted... in funding, now, not access, they are devoted to those activities which in the judgment of the Board of Visitors are consistent with the educational purpose of the university, and there are several categories that are in, and there are several categories that are out, religion being one of the out categories.

Chief Justice Rehnquist: But according to a case like Widmar v. Vincent, where you're talking about student activities like this, you can't exclude religion.

Mr. Jeffries: Mr. Chief Justice, Widmar makes explicit reference to the fact that it is not intended to apply to funds.

Chief Justice Rehnquist: So you say providing space, or facilities and lighting and so forth, in doing that the university can't discriminate, but if instead of that it decides to make cash payments, it can?

Mr. Jeffries: That's exactly right, and the university does not discriminate in any way.

These plaintiffs have full access to university facilities.

If I may just explain why that--

Justice Scalia: Well, you could really help these people out and even the playing field by not distributing your student activity subsidies in cash, just provide printing presses for all these organizations.

Then it would be okay to give these people what they want.

Mr. Jeffries: --Justice Stevens said in Widmar that if access were short, that is, if it needed to be rationed, that would warrant the university giving access on the basis of the content of speech.

The distinctive fact about higher education, and about public education generally, is that owing to the demand at peak hours, classroom space always is in abundant supply after hours, so on the facts of Widmar, on the facts of Lamb's Chapel, there is no need to ration anything.

It's a benefit that can be provided at practically no marginal cost.

Justice O'Connor: Well, what if the activity involves a controversial speaker and providing facilities to take care of that?

That can cost a lot of money.

I'm not sure that providing access to facilities is cost-free.

Mr. Jeffries: It has been practically so in our experience.

I agree with--

Justice O'Connor: But it might not be.

Mr. Jeffries: --Yes, ma'am, and I agree with Justice Stevens that if access needed to be limited either because of cost or because of a lack of physical space, that would present a very different case from what was presented in Widmar or what was presented in Lamb's Chapel.

Funding must--

Justice Scalia: And you could say, because there's a shortage of space we're going to decide religious organizations are at the end of the line?

Mr. Jeffries: --If there were a shortage of space that would present a--

Justice Scalia: That's what Widmar stands for?

Mr. Jeffries: --a very different question.

Chief Justice Rehnquist: You're relying on Justice Stevens' separate opinion in Widmar for that?

Mr. Jeffries: For that point, I am.

[Laughter]

Justice O'Connor: I mean, I would have thought the First Amendment would indicate that if you have to restrict access it ought to be on some neutral ground.

We're not going to provide access if to do so requires us to spend a lot of money.

Mr. Jeffries: And we do not restrict access, so to the extent that the concern is about access, these plaintiffs have no quarrel with us.

This entire case involves the question of whether we write them a check.

Now, Justice O'Connor, very early you asked me a question which I'd like to get to.

I think it's the heart of the case.

As I hear the petitioners, they more or less concede that in giving out scarce money, judgments just inevitably be made.

Choices must be made, there must be priorities, so that the major ground of dispute here is their claim that the university's guidelines are guilty of antireligious viewpoint discrimination.

That is not true.

The university funds, not opinions or viewpoints, but activities.

The university does not fund religious activities.

The university does not fund antireligious activities.

If there were a journal of antireligion, if there were a journal devoted primarily to denying the existence of a deity, we would not fund it, it would not be eligible for funding, and it would not be eligible on precisely the ground that Wide Awake is not eligible.

If there were an anti-Christian newsletter devoted primarily to denying the tenets of Christianity, we would not fund it, it would not be eligible for funding, and it would not be eligible for funding on precisely the ground that Wide Awake is not eligible for funding.

Justice Kennedy: What about secular humanism?

Mr. Jeffries: A journal devoted to secular humanism?

Justice Kennedy: Yes.

Mr. Jeffries: As far as I know from the name you've given it, that would be fine.

I confess, I'm never sure that I know what secular humanism is.

[Laughter]

Thank you.

Justice Souter: If secular humanism says, we take this position because all religion is rot, you wouldn't fund it.

Mr. Jeffries: If it were primarily devoted to the all-religion-is-rot position, it would qualify as a religious activity under the guidelines and would not be funded.

My point in emphasizing this is to make a statement to you that the University of Virginia feels very strongly about.

We are not picking out a religious point of view and trying to suppress it.

Justice Scalia: No, but you're picking out theology.

I don't know that you would try to justify the exclusion of some other area of thought, or discussion, or belief, by saying, we're excluding this entire area, both those who like it and those who don't like it.

Mr. Jeffries: Yes, we do exactly that, Justice Scalia, with respect, for example, to lobbying and electioneering.

In all these areas, we do the same thing.

Chief Justice Rehnquist: Could the University of Missouri in Widmar have said, we're going to deny access to this religious group to these rooms, and we're also going to deny access to any antireligious group, but we're going to give it to everybody else?

Mr. Jeffries: Mr. Chief Justice, my understanding of the Widmar and Lamb's Chapel line of cases, which say that so long as they have a surplus of rooms, so long as there is no need to ration access to them, so long as everyone can be accommodated, those exclusions--

Chief Justice Rehnquist: Well, did the Court opinion in Widmar stress those facts?

Mr. Jeffries: --No, sir, it did not, but you have to read Widmar and Regan at the same time.

If those facts are not stressed in the Widmar opinion... and, by the way, I think I spoke too quickly, Widmar does say, and this is the majority opinion, nor do we question the right of the university to make academic judgments as to how best to allocate scarce resources, which is what we're dealing with here.

Widmar does say that, but more importantly, Regan is a unanimous decision of this Court.

Regan concerns funds and, frankly, we think Regan and our case are on all fours.

Justice Souter: Could I go to a question peculiar to funds?

Your opponents say that your argument there is specious, because you rely upon cases in which the Government is deciding, as it were, to speak for itself, and it can decide what speech to make, whereas the University of Virginia is not speaking for itself, it is funding the speech of others, and it is because of that distinction that it cannot make the distinctions that you draw.

What is your response to that?

Mr. Jeffries: Justice Souter, the university pays my salary.

It's not true that I represent in the classroom any particular university point of view, it's not true that I am a spokesman for a particular campaign, but it is certainly true that the university is not indifferent to what I do there.

In other words, in the classroom there is a very broad range of educational speech that is funded, but that's not to say that all speech is funded.

Exactly the same is true of the student activities fees.

Is that responsive?

Justice Souter: In effect you're saying, any subject matter distinction can be made, and it doesn't matter at the point in time, or the point in the legislative process at which the Government says, this is my speech as distinct from, this is what I will pay for.

Mr. Jeffries: Any distinction can be made, so long as it meets this Court's standard of being reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.

Justice Breyer: Suppose that there's a magazine put out by hobbyists, or by fraternities, and the magazine has some articles devoted to how wonderful it is to live at theta beta whatever, or how to build model air planes, but several other articles have to do with issues on campus from the point of view of the fraternity, or issues on campus from the point of view of model airplane builders.

Now, does that get funding, or not?

Mr. Jeffries: Insofar as it's put out by fraternities, I feel confident--

Justice Breyer: There are a group of people who happen to belong--

[Laughter]

--to fraternities, or they build model airplanes, and what they do is, they put out the magazine I was talking about.

Mr. Jeffries: --It is eligible to be considered for funding.

Justice Ginsburg: Mr. Jeffries, if we don't accept your distinction placing this closer to the Government choosing what subjects it wants discussed, and we do accept that it's Government facilitating speech of others, not its own choices, you... how would you address the establishment objection that you've assiduously stayed away from in your brief?

Suppose we reject your position on the free speech side of it?

Let me try to state as clearly as I can, since the briefs are so different in their emphasis on the Establishment Clause, what we think the relevance of that question is to this case.

Petitioners say that the fact that this case involves funding doesn't matter at all, and they rely heavily on access cases, Widmar, Lamb's Chapel.

Mr. Jeffries: We say the fact that this case involves scarce dollars is decisively important, and we rely very heavily on Regan, and also on Rust v Sullivan.

From petitioner's point of view, the Establishment Clause is a grave problem, because there are many decisions of this Court stating that where religion is involved funding does matter, that it matters quite a lot.

So petitioners are essentially coming to the Court and saying either that a lot of past Establishment Clauses need to be distinguished within an inch of their lives, or they need to be overruled.

That is, as you can tell from the exchange, including the exchange among religious amici, that is a controversial proposition, but it is only the first step in petitioners' argument.

Petitioners not only want this Court to overrule Establishment Clause cases and permit Government to give direct aid to religious activities where other activities get such aid, petitioners want to go farther.

They want to take a second step which is truly radical, to say that where other activities get Government aid, Government must fund religious activities.

Petitioners want to go--

Justice Scalia: --You think that's a major step, a major--

Mr. Jeffries: Oh, yes, sir.

Justice Scalia: --additional step?

Mr. Jeffries: Yes, sir.

Justice Scalia: The step between providing a classroom and providing the money to rent a classroom you think is really--

Mr. Jeffries: The step--

Justice Scalia: --a step off a cliff.

Mr. Jeffries: --Access to a budget is a major step.

Justice Scalia: But the classrooms are bought with budget money, certainly.

Mr. Jeffries: Yes, sir, and they are, once they're there, virtually cost-free to allow two classes or three classes as opposed to one or two, virtually cost-free.

No practical significance to that.

Justice Scalia: Well, that may affect the fisc.

I can understand how those who are interested in a balanced budget may be concerned with that distinction, but I don't know how those who are interested in unconstitutional support of religion see a great difference between providing that assistance in cash or that assistance in some other... in some other means, whether it's cost-free or not.

Mr. Jeffries: May I try to identify the consequences?

If, as petitioners claim, Government funding of speech activities must be accompanied by Government funding of religious activities, if that's true, all of public education as we know it is unconstitutional.

Every public school in America at every level in every State does what we do.

They fund speech--

Justice Kennedy: But of course the only justification for your using the word, religious activity, is because of the special way in which this regulation defines it.

What we're talking about here is religious speech.

That is different.

Mr. Jeffries: --Different from--

Justice Kennedy: Religious activities and religious exercises.

Mr. Jeffries: --Well, our definition of religious activity is stated in the guidelines that's been quoted to you.

It includes activities, and the activity here is the publication of a magazine, and that involves religious speech.

Maybe I'm missing your point.

Justice Kennedy: The only thing that's at issue here is religious speech, not religious exercise.

Mr. Jeffries: Justice Kennedy, you're drawing a distinction that I do not clearly apprehend.

Justice Breyer: Well, if for example you have a person who does... a Republican and a Democrat and an Episcopal minister all give exactly the same speech about the homeless problem, one from a Republican point of view, one Democratic, and one says I'm a minister and I have my own experience.

The speeches are identical.

Mr. Jeffries: Yes, sir.

Justice Breyer: You fund the first two but not the third.

Mr. Jeffries: We would not be in a position of funding any speech by speech.

That's simply not the--

Justice Breyer: They write it a news... they write it in a little magazine.

Mr. Jeffries: --All those may be published, and they all may be published in a newspaper which publishes lots of points of view.

Justice Souter: And isn't it the case that when you were using religious speech in this argument, and when Virginia is deciding what it means to fund, specifically when Virginia uses the word manifest, aren't you, in each instance, talking about speech which does not merely explain a point of view, but espouses it, speech which in effect recognize the difference between, this is a way of thinking, and speech which says, this ought to be your way of thinking.

Isn't that the distinction that is implicit in your entire argument, and in these guidelines as you read them?

Mr. Jeffries: Yes, sir, and as those guidelines are applied, they focus for the hallmarks of a religious activity on observances or proselytizing, which we do not wish to fund.

Justice Scalia: Was there a finding of proselytizing intent as the basis for the... I don't find that anywhere in the record.

I think manifest means manifest.

Do you mean that it would be okay if this group said, we're not going to try to convert anybody, we just want to explain why Christian viewpoint provides certain consequences on a whole range of public issues?

Mr. Jeffries: The opening--

Justice Scalia: Would that be accepted?

The university will accept that publication?

Mr. Jeffries: --It might be, depending on the facts more carefully defined.

The magazine--

Justice Souter: Oh, but in theory, it would.

I mean--

Justice Scalia: --You have to say yes if you're going to answer Justice Souter the way you did.

Mr. Jeffries: --The only reason I haven't said yes is because I don't know enough about your hypothetical magazine to have a confident reaction to it.

Justice Souter: It may be tough to identify it as one or the other, but the distinction is a distinction that the university would honor, isn't it?

Mr. Jeffries: And that is... yes, sir, exactly.

Justice Scalia: And the university would... who wrote these regulations for the university, then?

The university would consider that that... such a publication does not manifest a particular belief?

It's whole basis is, Christianity provides these answers to a whole range of certain... that magazine does not manifest a particular belief?

Mr. Jeffries: I think the best answer I can give you is that the magazines in the record do manifest a religious belief.

The letter from the editor in the inaugural issue says that its mission is to challenge Christians to live in word and deed according to the faith.

Thank you, sir.

Rebuttal of Michael W. McConnell

Chief Justice Rehnquist: Thank you, Mr. Jeffries.

Mr. McConnell, you have 1 minute remaining.

Mr. McConnell: Mr. Chief Justice, I'd just like to conclude with a practical observation about the real impact of... on free speech of the Government's use of the power of the purse.

Effectively, Ronald Rosenberger and his fellow students were enabled to put together a newspaper, and there's a carrot dangling in front of them, and the carrot has attached to it something about their speech, that they can address issues if they want to, but if they want to receive the carrot, they have to do them in a particular way.

They have to censor their own religious viewpoints, they have to make sure that they don't quote from one book, the Bible.

They could quote from others.

They have to--

Justice Souter: I don't think that's what your brother is saying.

I think what your brother is saying is, they cannot cross that line between saying, this is the Christian viewpoint, and this ought to be your viewpoint.

Now, that may be a tough line to draw.

He certainly admits it.

But that, it seems to me, is the only censorship that we're talking about.

Mr. McConnell: --Your Honor, if their viewpoint were secular, they're certainly entitled to write a magazine saying, this is our viewpoint, and you should share that viewpoint.

Animal rights groups are doing precisely that.

Feminist groups are doing precisely that.

Every other group is permitted to proselytize, which I'd just like to note is nothing but an ugly word for persuade, which is just exactly what the Free Speech Clause is designed to protect.

Justice Souter: They like the word manifest.

[Laughter]

Chief Justice Rehnquist: Thank you, Mr. McConnell.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Lee v. Weisman - Oral Argument

Fri, 09 Jan 2009 14:49:34 +0000

Case:

Lee v. Weisman

Media File:

90-1014_19911106-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Charles J. Cooper

Chief Justice Rehnquist: We'll hear argument first this morning in No. 90-1014, Robert E. Lee v. Daniel Weisman.

Mr. Cooper.

Mr. Cooper: Mr. Chief Justice, and may it please the Court:

At the 1989 graduation ceremony of the Nathan Bishop Middle School in Providence, Rhode Island, Rabbi Leslie Gutterman opened the exercise with an invocation... one characterized by the district court as an example of elegant simplicity, thoughtful content, and sincere citizenship.

Justice Blackmun: How old were these youngsters, Mr. Cooper?

Mr. Cooper: I beg your pardon, Justice--

Justice Blackmun: How old were these youngsters graduating?

Mr. Cooper: --Your Honor, the graduates themselves, were graduating from middle school and into high school.

So they were just completing their eighth grade.

Justice Blackmun: Well, how old were they is my question.

You haven't answered me.

Mr. Cooper: Your Honor, I think--

Justice Blackmun: About 13 or 14, aren't they?

Mr. Cooper: --Yes, Your Honor.

Justice Blackmun: Are we getting so--

Mr. Cooper: I'm sorry, I could not hear you.

Justice Blackmun: --Never mind, go ahead.

Mr. Cooper: The district court and the court of appeals concluded that Rabbi Gutterman's invocation... and he gave a benediction which contained a similar reference to God... he opened the ceremony with the statement, God of the free, hope of the brave.

The district court concluded that that reference to the deity constituted an endorsement of religion, and therefore violated the second prong of this Court's three-part test under the Lemon case.

Justice Scalia: Mr. Cooper, the injunction sought here... this plaintiff is now out of the middle school and in high school.

Mr. Cooper: Yes, Your Honor.

Justice Scalia: And what's sought to be enjoined is the invocation in high school, isn't that right?

Mr. Cooper: Your Honor, the injunction runs to the public schools in Providence--

Justice Scalia: To the public schools in general.

Mr. Cooper: --And it includes certain high schools, yes, Your Honor.

Justice Scalia: But the high school students, how old are they?

They're about 18, I would guess.

Mr. Cooper: Your Honor, the graduates generally are in the 18-year-old range, yes, Your Honor.

The district court and the court of appeals on the concession of counsel for respondents concluded that if the invocation and benediction had been recast to omit reference to God that it would have been constitutionally unobjectionable.

So the courts enjoined the Providence School Committee from encouraging or authorizing future graduation ceremonies to include references to God, or prayers including references to God.

We submit that if the courts below were correct, that if the Establishment Clause forbids the governmental expression of religious sentiments in a traditional civic ceremony of this kind, then Rabbi Gutterman's elegantly simple reference to God pales as a constitutional threat, when compared with the opening ritual of this Court that we have just witnessed.

We certainly believe that it cannot compare with opening congressional sessions, and State legislative sessions with prayer, as is practiced in Congress, and was upheld by this Court in Marsh against Chambers.

Justice Souter: Well, isn't one of the reasons that the people who are listening to the prayer are capable of exercising different degrees of judgment, and hence different degrees of assent or nonassent by their being there.

Isn't that another distinction?

Mr. Cooper: Yes, Your Honor it is.

In fact, we would concede that that is a very important part of the nature and setting of either a graduation ceremony or a classroom prayer, or prayer as expressed by this Court's--

Justice O'Connor: If the same prayer were offered at the opening and closing of classes in the public schools, would you be making the same argument?

Mr. Cooper: --No, Your Honor, I would not.

Justice O'Connor: And why not?

Under your test it wouldn't be coercive.

They wouldn't have to participate.

Mr. Cooper: Your Honor, to the contrary, we think that we would offer the following analytical framework for determining whether or not governmental expression of religious beliefs is coercive.

The first--

Justice O'Connor: Now the very same prayer?

Mr. Cooper: --The very same prayer, yes, Your Honor.

The first question would have to be, is exposure to the Government's religious belief or religious expression voluntary?

Is it truly voluntary, or is it forced upon the individual through some--

Justice O'Connor: And why is it voluntary here?

Mr. Cooper: --Your Honor, it's, it's... it's voluntary here because the parties have stipulated to that fact.

There's a stipulation.

There was no factual dispute over whether it's voluntary.

Now, in a different case, there may well be a graduation ceremony in which it was not voluntary, where--

Justice O'Connor: Children are perfectly free to attend their commencement or not.

Is that the theory?

Mr. Cooper: --Your Honor, that is the case by stipulation in this case before you.

Justice Kennedy: Has there been a stipulation that there's no stigma to the student who absents him or herself from the graduation during the prayer?

Mr. Cooper: No, Your Honor, there is no such--

Justice Kennedy: I find it very difficult to accept the proposition that it is not a substantial imposition on a young graduate to say you have your choice of... I want to characterize it in a neutral way... hearing this prayer, or absenting yourself from the graduation.

In our culture, a graduation is a key event in the young person's life.

The family comes, aunts, uncles, brothers, sisters.

And I think it's a very, very substantial burden on the person to say that he or she cannot... can elect not to go.

Mr. Cooper: --Your Honor, I think that one... I think that one can make out a very serious argument to just that effect.

And it would not be--

Justice Scalia: Maybe that line doesn't work, then.

Mr. Cooper: --I beg your pardon?

Justice Scalia: Maybe that line doesn't work, that it's only okay if you don't have to listen to it.

I mean certainly counsel here, who listened to, you know, God save the United States and this Honorable Court have to be here.

Mr. Cooper: That's true.

Justice Scalia: Right?

Mr. Cooper: That is true.

Justice Scalia: I don't think we let them walk in after that is said in the Court.

[Laughter]

Mr. Cooper: Well, Your Honor, yes, if... if it is... if it is that the Government's religious expression is forced upon the individual, then you must assess the nature and the setting of that expression, and--

Justice Scalia: Well counsel have to be here, but they don't have to agree to it, do they?

Mr. Cooper: --That's... that is the point.

And the circumstances in which the Court's opening prayer is expressed are in no way coercive.

And in that regard--

Justice O'Connor: Well, if you take that line, I just don't see how you can draw the distinction, then, about the same prayer given in the classroom.

Mr. Cooper: --Well, Your Honor--

Justice O'Connor: You don't have to listen, right?

I mean that would be your theory.

Mr. Cooper: --No, to the contrary, Your Honor, I think the classroom setting is much distinguishable.

Justice O'Connor: Were... were the children at this commencement exercise all seated together?

Mr. Cooper: Your Honor, the record does not reflect that fact.

And I do not know.

Justice O'Connor: And you don't know.

We don't know.

And you don't know if they were all asked to stand and bow their heads?

Mr. Cooper: Ah, there's... there's no indication that that was the case.

Justice Souter: Counsel, if the point is that they don't have to listen or don't have to participate, why can't you use a sectarian prayer?

Mr. Cooper: Your Honor, I don't think that a sectarian prayer would, per se, be coercive.

I think, however, that the more theologically specific an invocation is, or a prayer is, the more likely it is to be coupled with coercive elements.

Justice Stevens: But simply making the prayer sectarian--

Why would a sectarian prayer be any more coercive than this prayer?

Mr. Cooper: --I don't believe that it would, necessarily, Your Honor.

Justice Stevens: The imposition would require the same result if they, say they had Mass, if they prayed.

Mr. Cooper: Your Honor, that, I think would be an extreme example... one that would--

Unknown Speaker: Or say Our Father 13 times.

Mr. Cooper: --Your Honor, again, that might well be the kind of extreme example that Justice Kennedy referenced in Allegheny County... exhortations of religiosity that amounts to proselytization.

I think that may well cross the threshould of mere expression to coercion.

Justice Stevens: Well, would one be any more coercive than the other?

Mr. Cooper: I beg your pardon?

Justice Stevens: Would one be any more coercive than the other, under your view of what coercion means?

Mr. Cooper: I think that one can imagine and can hypothesize extreme examples... examples that would, indeed, cross the threshould from religious expression to coercion.

I don't think that it is--

Justice Stevens: How could you coerce the audience?

They don't have to listen.

I don't understand how a statement from the podium could be coercive under your view.

Mr. Cooper: --Well, Your Honor, the statement from the podium may be accompanied by various exhortations such as Justice Kennedy has referenced, to actually participate through visible means of assent.

Justice Stevens: Nothing more than please stand, nothing more than please stand... which I assume happens in all graduations.

Mr. Cooper: That may well be true, and I don't think please stand would probably rise to the level.

Justice Stevens: But then... but then a very sectarian series of prayers, if the student need not listen to them?

Why is that any more coercive than this?

Mr. Cooper: Your Honor, I am not making the argument... and I do not make the... the argument that merely adding sectarian references to the prayer is going to make it more coercive.

I simply suggest that one should be alerted when that happens to the more likely prospect that the Government is in--

Justice Stevens: The Government--

Mr. Cooper: --in that case--

Justice Stevens: --is endorsing a particular position.

Mr. Cooper: --Not necessarily endorsing, no.

I don't think that... but rather that it is actually engaged in an effort to coerce, engaged in exhortation to religiosity.

Justice Stevens: I just simply don't follow you, why one is more coercive than the other.

Justice Scalia: I don't either, Mr. Cooper.

And you're trying to say the only test is coercion.

I don't... I just don't think that comports with our tradition.

You cite Thanksgiving proclamations, you cite the God save the United States.

I mean we don't say Jesus Christ save the United States and this Honorable Court.

And I don't think that would be in accord with our religious freedom tradition... or, In Jesus Christ We Trust on the coins.

We wouldn't put that in there, would we?

Mr. Cooper: Your Honor, I don't think we--

Justice Scalia: And it's no more coercive than saying God.

Mr. Cooper: --I don't think we would put that on the coins, but I think that is because, at this stage, that would not be politically possible, because--

Justice Scalia: If that's the only... but if we could get the votes for it, we could do it under the Constitution?

Is that what you think?

Mr. Cooper: --Your Honor, in 1983 the Congress passed a joint resolution that declared the Year of the Bible.

And in that resolution, the Congress said that the Bible is the word of God.

The President issued that proclamation.

That is a sectarian proclamation.

I don't think that violates the Establishment Clause.

And I don't think it does anymore than In God We Trust, our Nation's motto.

Justice O'Connor: Would it do so if a State legislature were to adopt a particular religion as the State religion, just like they might pass a resolution saying the bolo tie is the State necktie?

[Laughter]

We'll pass the resolution that whatever that particular church is, is the State church... although it's not coercive.

We're not going to enforce it.

Mr. Cooper: If it is purely coercive--

Justice O'Connor: Not coercive.

Mr. Cooper: --If it is purely noncoercive, then I have a difficult time distinguishing that from the proclamation that I've just cited, the Year of the Bible.

Justice O'Connor: So in your view, that would be perfectly okay.

Mr. Cooper: Your Honor, I think that in light of the rule of law that we believe, the founding fathers established in the Establishment Clause, some finding of Government coercion of religious sentiment is necessary to make out a violation.

So your hypothetical is not the--

Justice O'Connor: Well, that certainly hasn't been our case holdings over a substantial period of time.

You would ask us to overturn a line of this Court's precedents to reach your view.

Mr. Cooper: --We are quite frank--

Justice O'Connor: Yes.

Mr. Cooper: --in our request that you re-examine at least Lemon's applicability to the context of Government expression in symbology.

But it is not--

Justice Scalia: But one can abandon Lemon without going as far as you're asserting, Mr. Cooper.

Why not noncoercion plus nonsectarian?

Don't you really think that accords a lot more with all of the exam... the historical examples that you give, with perhaps the exception of the Year of the Bible, which doesn't go back to Thomas Jefferson.

Mr. Cooper: --Well, Your Honor, the creche is sectarian, the menorah is sectarian.

And those are--

Justice Scalia: Oh, yes--

--those have been upheld by this Court.

--but we haven't confronted the case where the creche is allowed to be put there but the menorah not, where we say we're only going to allow the creche to be put there, and the State will not allow other religious symbols during other religious holidays to be put there.

That's a quite different issue.

You think that... do you think you give a tax exemption only to Christian churches, not to other churches, or only to Presbyterian churches?

Mr. Cooper: --Oh, no, by no means, Your Honor.

But I do think that the Establishment Clause under this Court's uniform holdings protects the nonbeliever no more... no less than it does the believer, and to the extent--

Justice Scalia: Oh, I see.

And you want to stick to those holdings, but not... but not to... ah, ah... the three-part test.

Mr. Cooper: --I don't think that those holdings depart from the rule of law ordained by the founding fathers.

In other words, if it is this Court's mission to identify, in Justice Brennan's words, the line between the permissible and the impermissible, and to discern that that line accords with history and faithfully reflects the understanding of the founding fathers, I don't think you can depart from the conclusion that, indeed, the Establishment Clause was intended to protect nonbelievers.

Justice Scalia: You think our historical tradition establishes just as clearly that the State cannot favor religion over irreligion, as it establishes that the State cannot favor one religious sect over another religious sect?

Mr. Cooper: I don't think that the--

Justice Scalia: You don't see any difference between them... in our constitutional tradition?

Mr. Cooper: --I do not see any difference with respect to coercion.

I don't think that the founding fathers would have any more countenanced a tax to support all ministers, than a tax just to support Christian ministers.

Justice Scalia: I'm talking apart from the coercion context.

I'm talking about Thanksgiving proclamations, I'm talking about In God We Trust.

You do not see anything in our constitutional additions that says you cannot be sectarian?

Mr. Cooper: Your Honor, I certainly don't quarrel with the proposition that by and large our Government expression of religious values and sentiments has been nonsectarian.

It has been nondenominational.

And it has favored, and indeed endorsed religion.

But I believe that if one searches the... searches the record of the development of the Establishment Clause itself, it's very difficult to say that the founding fathers, that the framers of the Establishment Clause meant to, ah, permit the establishment of religion, generally, but not the establishment of a particular religion.

And so I think that the analysis, insofar as coercion is concerned, is the same whether you're talking about nonsectarian speech or sectarian speech, except to the extent, again, that the more theologically specific it is, the more likely it is to be coupled with elements of coercion.

Justice O'Connor: Mr. Cooper, it sounds very much--

--Of course it's not--

--as though your test would make the test under the Establishment Clause more or less the test used under the Free Exercise Clause, making the Establishment Clause pretty much a redundancy, wouldn't you say?

Mr. Cooper: Your Honor, I do believe that the Establishment Clause and the Free Exercise clause were, ah, were framed by the founding fathers to accomplish religious freedom generally, both to prevent the Government from--

Justice O'Connor: Well, is the test the same under either clause for a particular challenge?

You think it's essentially the same inquiry.

Mr. Cooper: --Your Honor, I do believe that both require the finding of some coercive pressure on the individual--

Justice Kennedy: Well, could you have coercion from an establishment standpoint but not a free exercise standpoint?

Mr. Cooper: --Could you, Your Honor?

Justice Kennedy: Yes, in other words, if you find coercion in one, do you necessarily find coercion in the other?

Do you have to have the same level of coercion to satisfy an equal protection... or an establishment challenge, as you do a free exercise challenge?

Mr. Cooper: Your Honor, I cannot think of an instance where that might not be the case.

But perhaps you have.

I do think that, however, you can have coercion without having direct coercion, without actually mandating attendance, by holding out substantial inducements to attendance that would amount to undue influence.

I believe that the graduation ceremony context may well be such an instance.

So in that regard, if this case were coming before you in the absence of the stipulation that attendance was entirely voluntary, then there would have to be an inquiry into whether it was voluntary.

And if the determination was that it was not voluntary, that attendance, that exposure to the Government's speech, was not purely voluntary, one must assess the nature and the setting of that speech to determine if it is coercive.

I don't--

Justice Scalia: Of course, if you said that the Establishment Clause requires both noncoercion and nonsectarianism, then it wouldn't have a content different from the free exercise clause, would it?

Mr. Cooper: --Your Honor, I believe that is an accurate statement.

And certainly, if the rule that... the rule of law that you are suggesting is incorporated in the Establishment Clause, then this invocation in this benediction, anyway, before you, would have to be upheld, because it was clearly nondenominational.

With the Court's permission, I'd like to reserve the balance of my time for--

Justice Blackmun: Mr. Cooper, let me ask you a question.

You say it was nondenominational.

I read from the benediction:

"We must each strive to fulfill what you require of us all, to do justly, to love mercy, to walk humbly. "

That's lifted almost verbatim from the sixth verse of the eighth chapter of the prophet Micah, isn't it?

Mr. Cooper: --Your Honor, I... I believe that you're right, yes.

Justice Blackmun: You believe so?

Mr. Cooper: I will not argue with that.

But I do not think that transformed what was otherwise a very nondenominational invocation into something that was sectarian.

But even if it did, again, I would want to reiterate, that would not, in and of itself, mean that the religious expression was coercive.

Justice Souter: When you say sectarian, you mean that the entire prayer has got to be lifted or taken verbatim from some traditional, sectarian liturgy or traditional expression of prayer?

Or would it... would it be... let me give you the alternative... would it be sectarian if selected phrases had been taken, not only from the Bible, as Justice Blackmun suggested, but from recognized, written prayers of a given religion, and had just been en-sprinkled into this, and incorporated into this, but not... not verbatim?

Would that qualify as sectarian?

Mr. Cooper: Your Honor, it might well qualify as sectarian.

In other words, if... to use a prayer that is associated with just one sect, very clearly and distinguishably to the audience, it would be very difficult to maintain that that was not sectarian.

Justice Souter: But how about using half a prayer or a third of a prayer?

I mean would... is your using the word sectarian to draw this distinction, would it be sectarian if simply selected phrases had been taken out of a traditional liturgy and rearranged and otherwise incorporated into fresh material?

Mr. Cooper: Your Honor, I don't see how anyone could compose a prayer that did not include phrases that had been used by different sects.

And it would seem to me that if one, ah, composed a prayer using phrases from a number of different sects, they would have the very definition of a nonsectarian prayer.

Chief Justice Rehnquist: Thank you, Mr. Cooper.

Mr. Cooper: Thank you.

Argument of Kenneth W. Starr

Chief Justice Rehnquist: General Starr, we'll hear now from you.

Mr. Starr: Thank you, Mr. Chief Justice, and may it please the Court:

This Court has frequently looked to history and tradition in its interpretation of the Establishment Clause.

Indeed, it was Justice Brennan who said that our interpretation in this area must be guided by history, and by the understanding of the founding fathers.

Rabbi Gutterman's invocation and benediction are a far cry from practices that the founding fathers meant to stop by means of the Establishment Clause.

To the contrary, the acknowledgement of God, the invocation of God's blessing, the expression of thanks of the Nation to God, are practices that are as old and enduring as the republic itself.

Justice Scalia: It's sectarian--

Mr. Starr: Of course not.

Justice Scalia: --General Starr, to use the word God instead of Allah?

Mr. Starr: Absolutely not, not in our traditions.

It could be, at one level, a generality yes, of course.

Because you are asserting a theological belief that stands squarely in the Judeo-Christian tradition, yes.

But not sectarian in the sense that this Court has been concerned about it.

The concern has been manifested in two ways.

Do the particular practices accord, and are they tied to the traditions and the history of the Nation?

And from the earliest days of this Nation, beginning with Washington's own invocation, his own urging of the Nation to set aside time for prayer, a practice that continues to this day.

The point has been that we believe ourselves, as a people, to be one Nation under God.

But we nonetheless, while acknowledging that, in innumerable ways in our public life, respect freedom of conscience.

That was the point in Wallace against Jaffree.

It was that unifying--

Justice Kennedy: You're not urging that we reexamine Engel v. Vitale, are you, the Supreme Court case?

Mr. Starr: --We are not, because of concerns about coercion that are, in fact, at the heart of religious liberty.

It is a violation, a denial of religious liberty to coerce an individual with respect to an act of conscience.

That was--

Justice O'Connor: Well, how... how is it... how does the analysis fit in the situation where the child is excused from participating in the classroom prayer?

How would your test meet that, and how is that different from the graduation or commencement exercise, which all the children, obviously, want to attend as part of their school experience?

Mr. Starr: --They do, indeed.

With respect to the classroom, we believe that even though the child is told, you do not have to participate in this, there is, nonetheless, a powerful subtle indirect coercive pressure on the child in the classroom... with all that that means... compulsory attendance laws, the school with its officials, its authority figures and the like.

In our judgment, a commencement exercise, even on the school property is much more in the nature of a celebration.

It is a ceremony.

It is not part of the educational or instructional... I'm sorry--

Justice Stevens: Would this particular prayer, if given at the opening of a classroom in school, in your judgment be constitutional or unconstitutional?

Mr. Starr: --If it is being given, Justice Stevens--

Justice Stevens: In the classroom and compelled by... by the teacher and--

Mr. Starr: --If it's compelled by... oh, I think that's unconstitutional.

Justice Stevens: --That would definitely not pass your test.

Mr. Starr: Yes, because I believe coercion is very much at work in the classroom setting.

That is why, even though the Court has been debating now for many years the extent to which coercion is the sine qua non of the Establishment Clause--

Justice Stevens: So the distinction between this case and that case is simply that the attendance at the graduation is voluntary, whereas attendance at class is not?

Mr. Starr: --No, Justice Stevens.

I tried to be clear in saying that I believe the graduation ceremony is a ceremonial event.

It's not part of an instructional program in the schools.

It is more like attending the inauguration of the President, or the mayor--

Justice Kennedy: Suppose attendance were required at the graduation ceremony?

Mr. Starr: --I think the case becomes more difficult.

But I would still say, that as this Court's cases have said, that acknowledgments of God and the role of God in our life as a Nation is in fact a part of accommodation.

But it seems to me the correct answer is to say, yes, you must be there.

You cannot be required to participate in the prayer such as you must rise, and the like.

But you can, in fact, exercise your freedom of conscience the way we do when we're asked to pledge allegiance... allegiance to the flag of the United States.

Justice Kennedy: Suppose the whole class was asked to rise.

Suppose that they walked down as a class together to the strains of Elgar, and they sit as a class, and they're all asked to rise.

And I take it the option you're suggesting--

Mr. Starr: We looked--

Justice Kennedy: --and this is a mandatory attendance.

I take it the option you're suggesting is that the students who object can remain seated?

Mr. Starr: --Well, they may choose to stand.

But--

Justice Kennedy: Cross their fingers?

Mr. Starr: --the point is, we listened... Justice Kennedy, we hear a lot of things in a free society, with robust and uninhibited debate, with which we fervently disagree.

And a prayer may be among them.

And the point is, are we seeking to accommodate the traditions of the Nation, or are we trying to engage in what this Court has warned about time and again... proselytizing.

Justice Souter: Except the prayer is not--

Mr. Starr: I beg your pardon?

Justice Souter: --General, a prayer is not one element in a dialogue between people.

It's an element conceivably in a dialogue between the people and God.

But I don't see how you can analogize that to free debate.

Mr. Starr: No, the point is that the act itself is an act of acknowledgement of our traditions as a people.

When we look to history, when we heard what happened in this courtroom this morning, God's name was invoked in two instances.

Justice Scalia: You had to be here and you had to stand up, didn't you?

Mr. Starr: I felt it necessary to stand up.

But the point is that we do, Justice Souter, have to listen to things.

We don't have to... and this is the distinction, and I hope I'm being clear... and that is, in Barnett, you shouldn't have to participate in the sense of giving assent.

You may have to be present to hear things that you disagree with.

But does that violate freedom of conscience?

I don't think so, unless the Government is seeking to coerce the individual through proselytizing.

The point on the sectarian point, it seems to me that it is quite clear that our traditions... and the law of this Court is quite clear... that the more sectarian... that sectarianism is, in fact, an inherently divisive force, and that is something that the Establishment Clause has long looked to guard against.

Justice Souter: General, if--

Mr. Starr: Discrimination--

Justice Souter: --I'm sorry, I didn't mean to interrupt you.

Mr. Starr: --I was just going to say discrimination among sects... are saying we favor this particular sect.

Here in Pawtucket we favor Judaism, or we favor the Roman Catholic Church, would be wrong.

That is an Establishment Clause danger that Madison warned about.

That's sectarianism.

Justice Souter: If we accept the kind of the concept of tradition as a source of a criterion, don't we really have not an easy answer here, as I think you're suggesting, but a difficult one?

Because we've got... we've really got two traditions that we're going to have to reconcile.

One is a tradition of some religious expression on public occasions, and the other is a tradition which, I guess, is the school tradition, which does not have such a history, and which... at least so far as your brother is concerned... should be treated on the assumption that Engel is good law.

So if Engel is going to be good law, then when you get to the point of tradition, we've got to choose which tradition it's going to be.

Is it going to be the tradition of Engel, or is it going to be the tradition of noneducational public gatherings at which the deity is mentioned?

Mr. Starr: I don't think that the Engel tradition is implicated outside the classroom.

I urge the Court to think long and hard before it determines that a graduation prayer is more in the nature of a classroom event with the teacher in control of the classroom, and with a child in that setting having to get up and vote with her feet.

Justice Souter: Isn't the analogy a lot closer there than it is to a presidential inauguration?

Mr. Starr: It is certainly closer.

But the point... may I, Mr. Chief Justice, respond... the points I would make very briefly are these.

There are parents and loved ones present.

This is, after all, as a legal matter... and I think the legal aspect of this should not be overlooked--

Justice Stevens: Have you ever been to a graduation where the parents sit with the children?

Mr. Starr: --I beg your pardon?

Justice Stevens: Have you ever been to a graduation where the parents sit with the children?

Mr. Starr: No, the presence of the parents is not a talisman.

It's the point that this is a ceremony, so the child knows that what the child is plugging into is a tradition of ceremonial celebrations.

You are plugging into society by virtue of your being elevated from one passageway to another.

You're not in a classroom setting.

That is a clear distinction.

The fact that the parents are present there, and who have been able to advise the child beforehand... you may hear things that you don't like and you don't agree with.

You may hear a graduation speaker with whom you fervently disagree.

But that's the nature of this society.

That's part of a free society.

I think that--

Argument of Sandra A. Blanding

Chief Justice Rehnquist: Thank you, General Starr.

Ms. Blanding, we'll hear now from you.

Mr. Blanding: Mr. Chief Justice, and may it please the Court:

To convince the Court that this case represents a threat to all manner of ceremonial traditions in this country, the petitioners ignore an essential fact of this case.

And that is that this case deals with school prayer at a public school function that is run by public school teachers and officials, and that's organized for the purpose of honoring public school students.

None of the examples which the petitioners or the Government have suggested are comparable here occur in the public school setting.

All of the examples--

Justice O'Connor: Well, what about the courtroom prayer that we've heard argued and referred to this morning... ah, if you want to call it a prayer... at least the opening of court, in which the reference is made to the deity, and where people are expected to be here and to stand up and listen to it.

Now, how do you distinguish that?

Mr. Blanding: --Your Honor, I would suggest that there are two distinctions there.

One is that the courtroom opening does not occur in a public school.

And this Court has always, in every case that it has addressed the interaction of religion and public school officials, accorded special concern to that kind of interaction.

Secondly, the opening of court is a very... it's more like the Marsh kind of analysis.

It's... first of all, it has a very longstanding history, and secondly, it's become a rote kind of thing.

So that the perception of a reasonable observer, I would suggest, is different.

Justice Scalia: You don't think invocations at graduations are a rote sort of thing?

[Laughter]

Does this mean that a public school cannot bring students in to a... to a session of this Court?

Mr. Blanding: No, Your Honor.

But I do not think that public school--

Justice Scalia: They can or they can't?

They can?

Is that all right?

Mr. Blanding: --It does not mean... it does not mean that students cannot be brought in to watch the Court sessions--

Justice Scalia: As required class, I mean you have to come to class and we're going to put you on a bus and you come to hear the Court session, or you come to watch a Presidential inauguration.

Can the public school do that?

Mr. Blanding: --I think that it is... yes, I think that the public school can bring their students--

Justice Scalia: Right, even though the word God would be invoked?

Mr. Blanding: --Yes, Your Honor, but I do not think that prayers at graduation are by any means rote.

Even within the city of Providence, half of the schools... half of the middle schools and high schools did not include prayer in their graduation ceremonies prior to the district court's injunction in this case.

So the... the kind of tradition that you're talking about is completely different.

There is not the history.

There is not the automatic kind of roteness that... that I think... that this Court's opening suggests.

Justice Scalia: It may not be the history for the past few decades, but I'll bet there was before... before there came to be any doubt about whether such invocations could be given or not.

Mr. Blanding: Well, Your Honor, I... I think that public school education, as this Court has already recognized, doesn't fall into the Marsh kind of analysis to begin with, because the facts relating to the history of public education are different than the facts relating to legislative prayer.

Justice Kennedy: Suppose that at this graduation the rabbi was present and he stood up before the main commencement speaker and said, I've been asked by the principal, on behalf of all the clergy here in... in Providence to congratulate you and to welcome you.

We've been praying for you, and we want you to know that all of our churches are open to you, and we hope that you take advantage of the rich resources that the religious community has here in Providence.

A violation?

Mr. Blanding: I think so, Your Honor.

Justice Kennedy: They're not asked to stand.

Mr. Blanding: What you still have in that case, is part of the facts of this case, which is that the public school officials have chosen a particular clergy to come in, knowing that that clergy is going to give a message promoting religion.

It is still a public school function that is inherently part of the whole public school educational process.

And the message that's conveyed to students is that Government is sponsoring a religious organization's religious message.

Justice O'Connor: But does that mean that the school can't invite a commencement speaker like Martin Luther King, who might make all kinds of references to the religious experience and the need to rely upon God's help in creating a just society?

Now, is the school forbidden from doing that?

Mr. Blanding: No, Your Honor, absolutely--

Justice O'Connor: To knowingly invite someone to be the commencement speaker, knowing that it's very likely that the person invited will speak in that fashion.

Mr. Blanding: --I think that it is not prohibited for the school to invite anyone that it chooses to be a commencement speaker.

I think that the problem arises, for purposes of the Establishment Clause, when the school does so, either approving or with the tacit understanding that that speaker is going to deliver a prayer.

For a commencement--

Justice Kennedy: Would your answers to these questions that Justice O'Connor and I are asking be the same if this Court or any of its justices were to use the dissent in Allegheny as the analytical framework--

Mr. Blanding: --Yes, Your Honor--

Justice Kennedy: --i.e., are you answering based on the Lemon test or an... or an endorsement sort of a test?

Mr. Blanding: --I think, Your Honor, under any test that the Court has adopted, that this practice violates the Establishment Clause.

Under the endorsement test, I think that the clear message that is being given to students is public school teachers are picking a clergy.

That clergy is delivering--

Justice Kennedy: What about under the coercion test of the Allegheny dissent?

Mr. Blanding: --Under the coercion test that the... that was set forth in the Allegheny dissent, I think yes, Your Honor there is definitely coercion here.

There is no difference here than--

Justice Kennedy: Well, what is the coercion?

Mr. Blanding: --There is no difference, Your Honor, between voluntary prayer in the classroom, between the fact situations of Abington, the fact situations of Karen B., where children were not required to be present in the first place, they could opt into the prayer session; from the situation in Engel where children were allowed to be excused, and there is in this situation.

Justice Kennedy: Is there, then, a free exercise violation, in your view?

Mr. Blanding: In this situation?

Justice Kennedy: Yes.

Mr. Blanding: Yes, I think there is both.

I think that the child who was in--

Justice Kennedy: Did you argue that there was a free exercise violation?

Mr. Blanding: --Pardon?

Justice Kennedy: Have you argued in your briefs that there's a free exercise violation?

Mr. Blanding: No, Your Honor, but in this particular case, Deborah Weisman was 14 years old when this graduation occurred.

She was leaving the eighth grade of a public school going into the ninth grade of another public school.

To suggest that there is no continuity there, that somehow this one day of graduation she was different... she was not subject to peer pressure, she was not subject to the pressure that comes from looking at schoolteachers as authority figures and as persons to emulate... to suggest that there is some magical difference between this one day is totally unrealistic.

This day was--

Justice Scalia: Ms. Blanding, suppose in addition to drawing the line between coercion and noncoercion, we drew a line between instruction and noninstruction?

Don't you see a difference between a prayer at the opening of a class in a context where students are there to learn, to be instructed... doesn't that have a different impact than a prayer at a ceremony like a graduation, which is not an educational program, it's not an instructional exercise.

Isn't there a difference between people voluntarily wishing to invoke the blessing of God, and people trying to instruct people about God?

Isn't that a difference that makes some sense?

Mr. Blanding: --I don't think, Your Honor, that this is a situation where people are voluntarily seeking to invoke God.

This is a ceremony that is directed to children, that is developed for the purpose of honoring children at a very important day of their lives.

They do--

Justice Scalia: Well, you... we have invocations like that at all sorts of events, not just high school graduations.

I mean, we do it at the opening of Court, we do it at the opening of Congress.

It's people in a country which overwhelmingly believes in God wanting to invoke God's blessing, without trying to instruct others about that.

Why is it suddenly different when it happens at a high school graduation or a middle school graduation?

Mr. Blanding: --I think it is different, Your Honor, for the same reasons that this Court has always accorded a different level of scrutiny to public school situations.

We do, in fact, have here a situation where the children all walked into the graduation together.

They were not seated with their parents.

They were seated together.

They were asked to stand to say the Pledge of Allegiance.

And they remained standing for purposes of listening to the invocation.

Chief Justice Rehnquist: Is this apparent from the record?

Mr. Blanding: It is not, Your Honor.

This record was submitted on an agreed statement of facts.

And the city, below--

Chief Justice Rehnquist: Is that contained in the agreed statement of facts?

Mr. Blanding: --It is not, Your Honor.

The city never argued a coercion argument, either before the United States Court of Appeals or before the district court.

So there was never a reason to raise the coercion... the facts related to coercion at those levels.

Chief Justice Rehnquist: Well, I... that may be a reason to object to a particular argument made here.

But I think you probably should confine yourself to the record when you're talking about facts.

Mr. Blanding: Yes, Your Honor.

Justice Stevens: Does the record tell us how often prayers such as this have been said in graduation ceremonies during the history of the country?

Mr. Blanding: No, Your Honor.

The record--

Justice Stevens: It just tells us about this particular graduation?

Mr. Blanding: --The record goes beyond this particular graduation and deals with all of the middle schools and high schools in the City of Providence.

And the record states that out of 11 middle schools and high schools, in the 5 years preceding this graduation, six of those schools routinely included--

Justice Stevens: I understand that.

Does it tell us anything about the extent to which this practice has been followed in any other school in the United States--

Mr. Blanding: --It does not, Your Honor.

Justice Stevens: --of any kind?

Mr. Blanding: It does not, Your Honor.

Justice Stevens: So we don't really know if there have ever been such things before, do we?

Mr. Blanding: That's true, Your Honor.

From the record you don't know that.

Not only does the city's argument ignore the essential nature of this case, but the city urges an interpretation of the Establishment Clause which would set the stage for radical changes in the relationship between Government officials and religious institutions.

The coercion test that the city suggests has been repeatedly rejected by this Court because in its brief, the city suggests that the Establishment Clause proscribes only the use of Government force or funds to aid or inhibit religious practices.

Indeed, in its brief, the city openly suggests that Government officials may participate in religious debate, and that Government speech cannot amount to coercion of religious... religious liberty to the extent that the Establishment Clause is implicated.

If this Court were to adopt the standard that the city proposes, then graduation ceremonies in public schools could open with a Roman Catholic mass.

And as long as the graduation ceremony was voluntary in the sense that children were not obligated to attend, then that would... that practice would pass Establishment Clause muster.

In fact, if the city's argument were adopted, there is nothing to prevent a Government official from standing up and saying that this is a Christian country and that non-Christians are doomed to everlasting damnation.

If speech alone, absent compelled attendance, does not warrant the protection of the Establishment Clause, then decades worth of cases which this Court has decided, dealing with prayer in the public school setting, must fall; Abington v. Schempp, Engel v. Vitale--

Justice Kennedy: Of course, of course, on that line of reasoning, I assume that the inaugural prayer and the prayer in Marsh v. Alabama are also inappropriate.

And you're just asking us to reconsider those decisions as well?

Mr. Blanding: --I am not asking the Court to reconsider those decisions, Your Honor--

Justice Kennedy: But the logic of your argument applies equally to those.

And it seems if those are on the books, that you should be required to notice, and to make a distinction between a Catholic mass and a sectarian prayer.

Mr. Blanding: --I would suggest, Your Honor, that taking Marsh, as an example, that the facts in Marsh are radically different from the facts of a graduation ceremony in a public school.

The legislators, first of all, were participants in the decision whether or not to include prayer.

The legislative sessions are much less controlled than are graduation ceremonies.

Legislators can walk in and out as they please... and they do walk in and out as they please.

Legislators are adults.

Justice Scalia: So there's less coercion.

I mean, all of these differences you're pointing out go precisely to the coercion point, don't they?

Mr. Blanding: Well, Your Honor--

Justice Scalia: And if that's the... I don't understand your basis for saying schools are an entirely different area, unless somehow it's a coercion basis, or an instruction basis, is it?

Because otherwise, Marsh and the invocation at the beginning of Court, and in Congress... you're talking a few decades of cases, as you mention.

We're talking a few hundred years of traditional practices in this country, which you somehow have to reconcile with the notion that you can't have an invocation at a high school graduation.

Mr. Blanding: --I am not suggesting, Your Honor, that the Court adopt a different test than it has used over the last several decades.

The Court has routinely addressed difficult questions... some dealing with old traditions, some dealing with newer situations... and has reconciled those traditions under the Lemon test.

But I do suggest to the Court that even if the Court were to examine this particular set of facts under a coercion argument, that in fact what the school department did here was coercive towards the graduating children, just as the voluntary prayer in the classroom is coercive.

The mere fact that this is removed from a classroom and takes place at a public school function instead of in the school building on a class day doesn't change the essential nature of the case.

Justice Souter: Well, is that a product of the manner in which the graduation is held, and the freedom to come and go... or lack of freedom to come and go... or is it because of the sophistication of the children or the adolescents, so that the effect of them is going to be different from the effect on legislators who may be standing here, or anyone in this courtroom who may be standing here and hearing God save the United States?

Mr. Blanding: It is a combination, Your Honor, of all of those factors.

This, in a sense, all of the Establishment Clause cases that this Court deals with are fact-specific.

They depend... as an example, in County of Allegheny... they depend on the specific facts that are before the Court.

And this case, yes, you have schoolchildren who are more impressionable than adults, you have schoolchildren who are part of the public school and public education arena and are subject to pressure from teachers, and who use teachers as role models.

You have, in addition to that, you have the fact that a school's generally... and graduation ceremonies in particular... are much more controlled.

The students have no authority to control what happens at a graduation ceremony.

Justice Souter: What about graduation from State universities, under your analysis.

If we have prayer of this sort, is the result going to be different, under your view?

I mean, graduating seniors today engage in demonstrations; they certainly have not indicated undue enthusiasm for authority figures in the last few decades.

[Laughter]

Are you going to say there isn't as much danger, and hence you're not going to come up with an establishment conclusion?

Mr. Blanding: I think, Your Honor, that may be a closer case.

But I still think that if you analyze that case under the traditional tests that this Court has used, and under the endorsement test, that the message that's being conveyed to the audience is still a message that Government officials are supporting and endorsing and favoring religious expression.

Justice Souter: Then it is an endorsement test, not a-coercion test that you're resting on.

Mr. Blanding: Yes, Your Honor... I am resting on the traditional Court... the traditional test that this Court has always applied in school cases, in combination with the endorsement test.

But I am also saying that it is coercive here.

So that even if the Court were to adopt the coercion test... not the coercion test which the city has suggested, because in that case, decades worth of cases would fall, and there are many, many situations that this Court has held violate the establishment Clause that would not under the city's test, even sectarian prayer, as the Court raised earlier.

But under the... the... under the coercion test that acknowledges that coercion can be very subtle, that it is not simply limited to is a citizen forced to pay money to support a church, or is a citizen forced to stand there and participate in a religious exercise.

Under an analysis of coercion that takes into account the subtle kinds of pressures that can be exerted on people... and particularly on children... then yes, I think that the practice here was coercive.

Justice Scalia: On college seniors... I mean, that was the last hypothetical.

On college seniors, do you think they are being coerced, more than the people in this courtroom when there is an apparent endorsement of religion?

Mr. Blanding: I think that a coercion test applied to college seniors would be a closer case, and would need to... would need to depend more on the facts.

But I think under the endorsement--

Justice Scalia: The problem is, if you don't use a coercion test, if you use an endorsement test, which you seem to be falling back on when you're presented with the college example, then there's no basis for distinguishing schools from courtrooms, from... from halls of Congress.

Mr. Blanding: --There is, Your Honor, because part of the endorsement test depends on the perception of the audience.

And what a reasonable person in the audience would perceive is the message that is being promoted.

And in this case, the audience is primarily schoolchildren.

And they are... the audience--

Justice Scalia: College, colleges, we're talking about.

Mr. Blanding: --I'm sorry, Your Honor, in a college graduation.

Justice Scalia: I think you have to say that that's good, unless you're using a coercion test rather than an endorsement test.

Mr. Blanding: I think the message to college seniors, Your Honor, would still remain under the endorsement test, that the school officials that are... that are putting on and organizing the graduation, if they are choosing a clergyman, as happened in this case, if they are suggesting to the clergyman... as happened in this case also... the school officials told the clergyman what kind of prayer he could say.

I don't know how you could avoid saying that that is endorsement.

Justice Kennedy: What about he coercion test... what about the coercion test?

You said endorsement.

I assume that you meant endorsement.

Mr. Blanding: Yes.

Justice Kennedy: Is your answer the same with reference to coercion?

Mr. Blanding: I think that the question, with regard to college seniors, Your Honor, is closer on the coercion test.

And I'm not prepared... without... I think that, again, the Court would have to look at the specific facts of that case that was before them.

Justice White: Well, counsel, don't you think that... you ought to urge the Court not to depart from the established precedent of Lemon?

Mr. Blanding: Yes, Your Honor, I am urging the Court--

Justice White: You sound like you really don't care whether we depart from it or not.

Mr. Blanding: --No, that's not true, Your Honor.

I--

Justice White: Do you think making the decision turn on coercion would be, in effect, overruling the line of cases?

Mr. Blanding: --Yes, I do, Your Honor.

I think that the Lemon test has, in essence, stood the test of time.

Although it is sometimes difficult to apply, I don't think the coercion test is any easier to apply.

The Court, in the area of criminal law, for example, has always wrestled with the issue of when a confession is coerced and when it is voluntary.

And even in that scenario, the age of the people involved is important.

I think that the National School Board Association makes the point better than I could make it in its amicus brief, which is that if this Court... that school officials and communities and parents have relied on this Court's analysis under the Lemon test for decades.

And if this Court were to not rely on the Lemon Court... test in this case, that what it would be doing is making all of the religion in the school cases for the last several decades suspect.

Justice White: Do you agree that this is a... under the Lemon test, this case turns on effects?

Mr. Blanding: I think, Your Honor, that both under the purpose prong of the Lemon test and under the effect prong of the Lemon test, that this practice must fall under the Establishment Clause.

Justice White: Well, the court below turned it on effects.

Mr. Blanding: Pardon, Your Honor?

Justice White: The court below turned it on effects.

Mr. Blanding: Yes, the court below addressed the effects argument, and did not address the purpose argument.

Justice White: Well, tell me how do you think that the primary effect of what went on at this ceremony is to advance religion?

And there is the word primary in the Lemon, isn't there?

Mr. Blanding: Yes, Your Honor.

Justice White: So there must be... there might be an effect advancing religion that isn't a primary effect.

Mr. Blanding: I think, Your Honor, that if the Court looks at the effect test in concert with the overtones of endorsement, the message that the school committee--

Justice White: Overtones of endorsement?

Mr. Blanding: --Yes, Your Honor... I think if the Court looks at the effect test as it has been interpreted in recent cases, in concert with the endorsement test, and understanding--

Justice White: Where did the endorsement test come from?

It isn't part of Lemon, is it?

Mr. Blanding: --Well, Your Honor--

Justice White: Is it or not?

Mr. Blanding: --The way that I am--

Justice White: Is it or not?

Mr. Blanding: --Well, I understand... the way I understand it, Your Honor, it is that the Court views the endorsement test as part of the effects prong of the Lemon test.

And I think that the message that is conveyed, the effect of having a school prayer... a prayer delivered at a public school function, that the effect and the message that's conveyed to the primary audience... which is the schoolchildren... is that public school officials are not only endorsing religion, they're endorsing a particular religious message that is being delivered by this particular clergy whom they have chosen.

Justice Scalia: Ms. Blanding, do you subscribe to that version of the Lemon test which says that the primary purpose and effect must not be to advance religion, or to the other version that says that a primary purpose or effect must not be to advance... because we've used both, depending on whether we want to uphold or not to uphold.

[Laughter]

Which one of the two do you like?

Mr. Blanding: Your Honor, under either analysis, I think that the primary purpose and effect in this case, of the school department's practice, is to advance religion.

There is nothing in the agreed statement of facts that was submitted to the court below that suggests the Government's purpose in including prayer in part of the school's commencement exercises, and not including them in other of the school's commencement exercises.

The Government makes the argument that by including prayer they are merely acknowledging religious tradition.

However, this Court has always recognized the fact that prayer is the... is inherently religious.

It's not simply a passive acknowledgement, as the display of a nativity scene, or the display or a menorah may, in some circumstances, be passive acknowledgement.

It is active.

It is worship.

To say that any vocal prayer is merely an acknowledgement of religious traditions is to diminish the value of that prayer.

Furthermore, I don't think that it is possible to devise a nonsectarian prayer that covers all people and all religious beliefs.

This country has become so much more diverse than it was when it was founded in terms of the religious beliefs of its citizens that it is virtually impossible to devise a prayer which encompasses the beliefs of all of those citizens.

With regard to the effect of including a prayer, as I stated earlier, the message that must be given by public school teachers who have chosen a particular clergyperson and have brought him into a public school function to deliver a prayer is that the public school is... at the very least... saying that prayer is a preferred practice.

And by doing so, they are giving a message to nonadherents and nonbelievers that their religious beliefs are not as important, that they are outsiders, and that the public school system does not belong to them in the same way that it belongs to believers.

Justice Scalia: Why doesn't a Thanksgiving proclamation do that?

And why is that any worse?

Mr. Blanding: A Thanksgiving... I think under its facts, Your Honor, a Thanksgiving proclamation is much different than a prayer which is delivered to a specific audience of children in a school setting which is as controlled as this one.

The Thanksgiving proclamation is not really delivered to any specific audience.

In fact, I'm not sure that there is anyone that would have standing to bring such a case before the Court.

Justice Scalia: But if you're talking about making people... you know, if that's the test, whether people are made to feel like outsiders, if you're going to use an endorsement test, is there anything that's more of an endorsement than a Thanksgiving proclamation... which virtually every President has issued?

Mr. Blanding: Your Honor, I think that, again, there are some Marsh elements, or in some sense the Thanksgiving proclamation is more like Marsh and has some more of the elements of Marsh than this particular case does.

Justice Kennedy: I don't see what a controlled classroom environment has to do with endorsement.

I can see what it has to do with coercion, not with endorsement.

Mr. Blanding: I think that in terms of the message that is being given to the audience, the primary audience, the whole set of facts around a graduation ceremony are relevant to the endorsement inquiry.

Justice Souter: Isn't that also a substantial part of the answer to the... to Justice Scalia's question about the Thanksgiving proclamation?

Effect depends on--

Mr. Blanding: The audience--

Justice Souter: --who's receiving it, and the audience is different.

Don't you rely, at least in part, on that?

Mr. Blanding: --I do, Your Honor.

Again, I think this case is essentially a school prayer case.

And it must be looked at in that context, as this Court has always looked at cases dealing with the interaction of religion in the schools in a special context.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. Blanding.

The case is submitted.

Attribution:

The OYEZ Project

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Allegheny v. ACLU - Oral Argument

Sun, 06 Feb 2011 03:46:01 +0000

Case:

Allegheny v. ACLU

Media File:

87-2050_19890222-argument.mp3

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87-2050_19890222-argument.xml

Transcript:

ORAL ARGUMENT OF PETER BUSCEMI ON BEHALF OF PETITIONERS COUNTY OF ALLEGHENY, ET AL., AND CITY OF PITTSBURGH, ET AL.

Chief Justice William H. Rehnquist: We'll hear argument now in No. 87-2050, County of Allegheny v. American Civil Liberties Union and related cases.

Mr. Buscemi, you may proceed whenever you're ready.

Mr. Buscemi: Thank you.

Mr. Chief Justice, and may it please the Court:

Five years ago this Court decided a case called Lynch against Donnelly.

In that case the Court upheld a Christmas display in Pawtucket, Rhode Island against a First Amendment challenge.

The display contained a rather large nativity scene with figures as big as five-feet tall.

The City of Pawtucket owned the display, erected it, and maintained it each year as part of a display in the vicinity of the City Hall and a private park near the downtown shopping center.

Unidentified Justice: So, it was on private property?

Mr. Buscemi: Yes, Your Honor.

The mayor himself participated in the lighting of the display each year, and a ceremony to which people were invited... the public was invited.

And the city's involvement in the display was never challenged.

Indeed, that was the reason that the case came before this Court in the first place.

Had there been no city involvement, of course, there would have been no constitutional issue presented in Lynch at all.

The Court rejected the Establishment Clause challenge in Lynch and held that the display did not compel or seek to compel adherence to any religious belief and did not violate the Establishment Clause.

The way in which the Court put the issue to be decided in Lynch is significant for today's case.

The Court said that the issue for decision in Lynch was whether the Establishment Clause prohibits a municipality from including a creche or nativity scene in its annual Christmas display.

That is how the Court began its opinion.

In the five years since Lynch was decided, three federal courts of appeals have considered Establishment Clause challenges to Christmas displays in various cities around the country, including Pittsburgh, Chicago, and Birmingham, Michigan.

Unidentified Justice: And we had a Scarsdale, New York case.

Mr. Buscemi: Yes, Your Honor.

That was affirmed by an equally divided court.

And, in any event, the Scarsdale case was slightly different, as you may remember, because it involved a request by a group to put a display in a park.

It was not a city display that was challenged after it was erected, as was the case in the Chicago case, the Birmingham case, and the case that's here today, the Pittsburgh case.

This case is here on certiorari to the Third Circuit and it involves displays in the Allegheny County Courthouse and in the City-County Building which is directly across the street from the Allegheny County Courthouse in downtown Pittsburgh.

The Allegheny County Courthouse display consists of a nativity scene which is surrounded by Christmas trees, poinsettia plants, wreaths on the windows behind the staircase, and is used as the site for a choral program that takes place throughout the Christmas season each year.

Unidentified Justice: What was it that surrounded the creche in the Pawtucket case?

Mr. Buscemi: Well, the creche in the Pawtucket case was surrounded by a variety of things, including a jumbo candy-cane, a talking wishing well, some reindeer, a Santa Claus, a sleigh and a variety of Christmas symbols.

Unidentified Justice: And did the court find that that had some significance for the Establishment Claim?

Mr. Buscemi: Well, that's a matter of dispute in the case, Your Honor.

As I read the Court's opinion, the Court did not very heavily stress the additional items that were included in a display.

The opinion for the Court--

Unidentified Justice: None of those things that you've listed were... surrounded the creche in this case.

Mr. Buscemi: --All right.

That's correct, Your Honor.

The... the staircase on which the nativity scene was displayed in this case was decorated with Christmas trees, poinsettia plants and wreaths.

There were other decorations elsewhere in the building, not immediately on the staircase.

The staircase was also used as the site for the choir programs that took place every day during the Christmas season during the noon hour.

In addition, the bottom of the staircase, which is on the second floor of the county courthouse, opens into an area called the Gallery/Forum area which the Court can see in the pictures that are reproduced in the joint exhibit volume.

That Gallery/Forum area is an area that's used to display a variety of artwork throughout the year.

It's not any kind of an integral part of the Christmas display.

In any event, as far as we are concerned, the opinion in Lynch does not stress the additional secular elements in the Christmas display.

They are listed at the beginning of the Court's opinion, but very little, if any, of the Court's opinion puts any emphasis on them as a key factor in the Court's decision.

What is a key factor in the Court's decision and what applies equally here is the context of the holiday season.

The nativity scene here, just like the nativity scene in Lynch, was not erected in the abstract.

It was erected as part of a holiday celebration that was sponsored by the County of Allegheny and then the separate display on the City-County Building--

Unidentified Justice: Counsel--

Mr. Buscemi: --sponsored by the city.

Unidentified Justice: --would you think that the context of the Christmas season would justify holding a religious service in the City-County Building?

For example, a Catholic mass or a similar service, at Christmas time?

Mr. Buscemi: Well, Your Honor, that question was raised during the oral argument in Lynch, and I think I'll answer it the same way as the Solicitor General answered it on that occasion.

I think that probably tests the limit of the Court's decision in Lynch, but I would say that would be appropriate as long as it were a noncoercive ceremony.

That is, it did not involve any compulsion and it did not involve anything more than a de minimus expenditure of public funds.

We think... our first submission to the Court about the legality of both the nativity scene and the other display is that they are passive displays.

The Court mentioned in Lynch twice that they were... that the display in that case was a passive symbol of the holiday.

And we think that that in and of itself is ground for sustaining the displays in this case.

I might add, just so that the facts are clear, the second display is in the front of the City-County Building.

It consists of a 45 foot Christmas tree.

There is an 18 foot menorah attached to the pillar next to the Christmas tree.

And there are... there is a sign from the mayor of the City of Pittsburgh, the text of which is reprinted in the briefs... talks about a salute to liberty and a reminder that the festive lights... that the festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.

Unidentified Justice: Do you think the message conveyed by a display may be different when the symbol is located in a city hall or a courthouse instead of a park in a commercial district, a private park?

Mr. Buscemi: Your Honor, we don't think so.

At least, not in this case.

And the reason is that the city's involvement with the display in Lynch was absolutely clear as well.

That was how the case came to this Court.

Moreover, at the very beginning of the Court's opinion in Lynch, the Court noted that the kind of display that the Court was addressing in Lynch was of the kind that was frequently displayed on public grounds throughout the United States.

And, in fact, I think there's a very strong argument that the display on the steps of the second floor of the county courthouse, a display which the record shows was not even seen by 90 to 95 percent of the people who enter the courthouse, is far less prominent and far less likely to convey any message of government approval than is the display in Pawtucket, which was erected and maintained by the city and which was illuminated by the city in a ceremony to which the public was invited.

Unidentified Justice: Are all symbols passive?

Would a cross be passive?

Or a swastika, which brings forth powerful emotions?

Mr. Buscemi: Yes.

I think the symbol itself is a passive device.

Now, there are cases that you may be aware of from the lower federal courts involving enormous crosses that were illuminated either on a hillside or the side of a very prominent building and that were found to be violations of the Establishment Clause because of the dominance of the symbol over the community and the inability to avoid the symbol and the fact that it looked as if the city were endorsing this as a symbol for the entire community.

That is far from the case here.

As far as the passive-active dichotomy, I think my answer to your question is yes, they would be passive symbols.

We have outlined in our briefs that the evil that was addressed by the Establishment Clause initially was the evil of government coercion.

Either government coercion of adherence to particular religious beliefs or government use of public funds to establish and support a church.

In the absence of those... of either of those things, we... I think we have to recognize that we're on the periphery of what the framers sought to address in the Establishment Clause in the first place.

Now, Justice O'Connor's concurring opinion in Lynch suggested a somewhat broader focus on the concept of endorsement.

And, of course, endorsement or the persuasive value of government action, doesn't necessarily involve coercion.

If the mayor, for example, were to announce that he thought it would be a good idea if the city adopted Judaism as its official religion, that might not involve any coercion but it might nevertheless constitute the kind of endorsement that Justice O'Connor's concurring opinion suggested would be inappropriate.

Unidentified Justice: Am I saying your name right?

Mr. Buscemi: Buscemi.

Unidentified Justice: Buscemi.

What does the city do for Moslems?

I don't know what an equivalently important celebration for Moslems would be.

Ramadan, I don't think they celebrated Ramadan.

It's a penitential season.

But--

Mr. Buscemi: I'm not aware that--

Unidentified Justice: --pick a Moslem holiday.

What if it were shown that the city here did not put up a similar display for the Moslem holiday?

Mr. Buscemi: --I'm not aware that the city does put up a similar display for any holiday.

One of the named Respondents in this case is a Moslem, Mr. Tunador.

He testified at the hearing in this case that the Moslem faith does not use outward symbols, and, indeed, regards them as improper.

Unidentified Justice: Uh-huh.

Mr. Buscemi: So, just to answer your specific question--

Unidentified Justice: Well, pick another faith.

Or make up one.

You, you see my point.

In, in order to avoid endorsing or appearing to favor one sect of religion over another, which I think the Constitution does not permit, does the city have to do this for every group?

Mr. Buscemi: --The key point in the Lynch case and the key point in my answer to your question would be the Christmas holiday season itself.

That is, the distinction that I would make between this case and the case that you pose is that Christmas has already been recognized as a national and a state holiday.

Christmas... and that is, in fact, the central thrust of the Court's opinion in Lynch.

Christmas, with its name, derived from Christ, and Christ's mass, has been recognized as a holiday, it's celebrated, the public employees are paid for not... even though they don't work on that day.

And the recognition of the historical origins of the holiday was seen by the Court in Lynch as having, at least in part, a secular purpose.

Unidentified Justice: Well, that explains the creche but not the menorah.

Mr. Buscemi: The menorah, I think, Your Honor, is part and parcel of the holiday season, as it is celebrated by the residents of Pittsburgh.

And that, indeed, is what was said by the district court in this case, and it was also what was testified to by the witnesses called by the Petitioners in the case.

The Chanukah holiday occurs on calendar at approximately the time of Christmas.

The menorah was designed to... for the purposes set forth in the mayor's message, to remind the people in Pittsburgh of the light of liberty and our legacy of freedom, and there was a secular component to that symbol.

Unidentified Justice: Do the creche and menorah have to be about the same size?

What if you have an enormous creche and a little tiny menorah, or an enormous menorah and a little tiny creche?

Mr. Buscemi: Well, in fact, in this particular case we had a menorah next to a Christmas tree without a nativity scene, and then a nativity scene on the staircase indoors without a menorah at all.

So, I would not draw any conclusions based necessarily on the size of the figures.

In fact--

Unidentified Justice: Well, what if--

Mr. Buscemi: --as I said--

Unidentified Justice: --the menorah were there without a Christmas tree next to it?

Just standing alone.

And it relates to a religious holiday, not a public holiday?

Mr. Buscemi: --Well, Your Honor, I would say that that would also be permissible.

I don't think that the Christmas tree is necessary to the constitutionality of the display.

And I don't think that the Court's decision in Lynch suggests that, that it would be.

It's really the same point that was made by Judge Wels in his dissent in this case in response to the majority's attempted distinction of Lynch on the two bases that, one, there was an unadorned nativity scene, which was factually incorrect.

But even if it had been factually correct, I don't think that Lynch's emphasis on the holiday season would be negated even if it were unadorned.

And, secondly, it's the city hall location, which Judge Wels also addressed in his dissent.

So, I don't think anything would change.

But I think that the presence of the Christmas tree emphasizes the overall holiday setting which the Court found so important in Lynch.

Unidentified Justice: Did any of the Plaintiffs in this case challenge the Christmas tree by itself?

Mr. Buscemi: No, sir.

There was no challenge to the Christmas tree, no challenge to the choral program of Christmas carols, no challenge to any of the other decorations in the county courthouse.

And that was made explicit on several occasions during the hearing.

If the Court please, I would appreciate the opportunity to save the remainder of my time for rebuttal.

Unidentified Justice: Very well, Mr. Buscemi.

Mr. Lewin.

ORAL ARGUMENT OF NATHAN LEWIN ON BEHALF OF OF PETITIONER CHABAD

Mr. Lewin: Mr. Chief Justice and may it please the Court:

The irony of this case insofar as it applies to the menorah is that an apparently successful effort on the part of the City of Pittsburgh to demonstrate to its population neutrality with regard to all religions by displaying a symbol which is religious as well as nonreligious to the Jewish community is being attacked as violating the Establishment Clause.

The holiday season that is involved here is, of course, a season which is recognized throughout the United States, and throughout the world indeed, but principally because its focus is a day that has become a secular holiday but has very substantial religious overtones to the majority population in this country.

It is not from the vantage point of the Jewish faith a time of a principal holiday that Jews celebrate.

It happens to be a time when there is also a minor Jewish festival, which is the Festival of Chanukah.

And, therefore, to demonstrate to the citizens of Pittsburgh its respect for minority faiths, the city erected immediately adjacent to a very large Christmas tree... and we have a photograph at page 4 of our petition of the scene... a 45-foot high Christmas tree.

Immediately adjacent to that, an 18-foot high menorah.

And we submit that, given the context, that is a perfectly appropriate and permissible educational effort on the part of the state.

This Court has said repeatedly ever since its opinion in Abington and Schempp that even actions, things that are not passive, but things such as bible readings, that are done for instructional purposes for religion generally are permissible.

And we submit that taken in proper context what this menorah does at... a time of a major Christian holiday is it advises the citizenry that there are other faiths that celebrate at that very same time--

Unidentified Justice: Mr. Lewin--

Mr. Lewin: --their own holidays.

Unidentified Justice: --Mr. Lewin, do you think the city had a duty to put up the menorah if there had been a request for or having already decided to display the creche?

Mr. Lewin: That's our--

Unidentified Justice: A constitutional duty?

Mr. Lewin: --We argue alternatively, Justice Stevens, that under Larson and Valente there is a basis for such an argument.

We are not presented with that, of course, in this case.

But we think that given the overwhelming Christian nature of an exhibit such as either a creche or a Christmas tree, if a Jewish group, or indeed any other group, were to approach--

Unidentified Justice: Well, that's the--

Mr. Lewin: --were to approach the--

Unidentified Justice: --next question I was going to ask.

Mr. Lewin: --city and it were possible--

Unidentified Justice: If then you have two religions represented, would you have a constitutional obligation to satisfy the request of a third or fourth and a fifth that might have different... pagan symbols or whatever they might be?

Mr. Lewin: --We think that a city that has a place, such as the steps of city hall, or something, where it could put other symbols, should not discriminate among religions and should--

Unidentified Justice: The how large--

Mr. Lewin: --in fact--

Unidentified Justice: --how large--

Mr. Lewin: --put other symbols there as well.

Unidentified Justice: --How large must the religious group be to be entitled to that kind of representation?

Mr. Lewin: Well, frankly, I think a religious group that is a bona fide religious group.

It needn't be very large.

It may say, at that time,

"We would like to have some indication of our faith. "

at that time.

Unidentified Justice: I suppose three or four persons who sincerely believed in the particular faith would be sufficient.

Mr. Lewin: Well, again--

Unidentified Justice: Well, why not?

Mr. Lewin: --I think it's--

Unidentified Justice: Why not?

Mr. Lewin: --It's--

Unidentified Justice: Is this a majority rule kind of thing--

Mr. Lewin: --No, I don't... it's not a majority rule, Justice Stevens.

But I think it... it's really a question... I think an impracticality--

Unidentified Justice: --I mean, there can be a very large religion from, you know, another country where they have only three or four representatives in Pittsburgh, but they may feel just as deeply about it.

Mr. Lewin: --And I think that for... indeed, if, for example, the City of Pittsburgh had a public forum which was open to religious faiths to conduct meetings on, it would be guided by the same the standard.

Unidentified Justice: Well, has it not adopted a public forum?

Isn't that what it's done?

Mr. Lewin: Well, in this case the evidence, frankly, doesn't support the public forum position because there was no effort made at the trial level to demonstrate that the steps of City Hall were a public forum.

We were denied leave to intervene at that stage of the case and no party made that... made that showing.

However, it would be precisely the McCreary case, Your Honor.

If in fact there is a public forum and there is a bona fide group and the group says,

"Look, we should be entitled to some representation. "

I think given limitations on time, place and manner, which this Court has regularly applied in these situations, I think a state has an obligation not to discriminate among religious faiths.

But, of course, again,--

Unidentified Justice: How about a menorah for a very small group?

Is... I mean, they'd all be the same size or--

Mr. Lewin: --No, they need not be the same size, Justice Scalia.

They... again, I think a rule of reason applies.

If you've got a limited space and there are groups that want to have some display at that time, to show respect for that group I think the city does have an obligation not to convey to its population there's only one faith in this country and that faith is the Christian faith that celebrates Christmas as a religious holiday.

And that's really what is done at Christmas time in terms of minorities.

The minorities, whether they are the Jewish minority, or the Moslem minority that celebrate their principal holidays at other times, are surrounded in our society by many, many symbols that indicate the majority faith.

And the problems with regard to endorsement... I think that Justice Brennen pointed out in his dissent in Lynch and Donnelly... apply when you have a symbol of a majority faith because that appears to be the state endorsing it.

But there could be no realistic appraisal on the part of anybody who saw that menorah standing next to the Christmas tree that Pittsburgh, which is not more than 10 percent Jewish population, is encouraging its citizens to become Jewish and is endorsing the Jewish faith.

That's a totally unrealistic appraisal of what that menorah is, even if the menorah is a religious symbol.

Because all that it is, in that context, is educational.

And to answer Justice O'Connor's question as it might apply to a Jewish ceremony, if there were a Jewish ceremony... and, again, this case does not involve a ceremony surrounding the menorah... but if there were a Jewish ceremony, we submit in the context of the holiday season and the display it would be an educational or instructional ceremony.

If Jews are permitted even on the steps of city hall to light a menorah in that context, it's not the state encouraging people to light menorahs, it's the state saying to the citizens of Pittsburgh,

"Look at this object. "

"To a minority faith, which are not second-class citizens in the United States, that is a respected tradition. "

"And we want you to learn about that tradition. "

And that's really all that Pittsburgh has done in this context.

Unidentified Justice: --Well, Mr. Lewin, why wouldn't the city have to open up its steps on another holiday for another religious faith?

Mr. Lewin: That's... I submit, Justice White, that... that's a much more difficult question than when it is already opening it up to the majority faith.

In other words, if--

Unidentified Justice: Well, I know, but if a religion says we have no business... we haven't any interest in putting our symbol up there at Christmas time.

That is... we don't celebrate at Christmas time.

We celebrate some other time.

And the city should show its... show that it isn't discriminating or endorsing a particular religion on another day.

Mr. Lewin: --Quite frankly, Justice White, if... if there were a, a public forum that was opened up to Christian ceremonies at Christmas time, then I think it would be appropriate to say to a minority faith,

"At the time of your religious holiday that public forum should be available as well. "

And we submit that there are cases, certainly, that this Court has decided that have said that you can't discriminate against religion.

And consequently, the Court has held that public forums have to be open for religious meetings, if they are open for nonreligious meetings.

And, and we submit that if there were a public forum, if there were evidence that this was a public forum, then if there were a Christian ceremony conducted on the public forum, there should be a Jewish or a Moslem ceremony if there is an application for them.

And I think that's--

Unidentified Justice: Well, doesn't it have--

Mr. Lewin: --an answer to Justice Scalia.

Unidentified Justice: --Doesn't it have to be a public forum?

Otherwise, the city is saying,

"This is not a public forum. "

"We've got a perfect right to confine this... the use of these steps to one religion. "

Mr. Lewin: No, I don't think--

Unidentified Justice: The majority religion.

Mr. Lewin: --I think if there is an area that is not thrown open to public meetings and, therefore, there is no evidence that it is a public forum--

Unidentified Justice: Well, here's steps that are thrown open to religious symbols by a majority faith.

Mr. Lewin: --If the steps are thrown open to religious symbols by a majority faith, then I think that they are a public forum as to which a minority faith may say,

"We should also be entitled to have our religious symbol on those steps. "

Unidentified Justice: So, it has to be a public forum for this purpose?

Mr. Lewin: Yes.

Unidentified Justice: For that purpose only.

Mr. Lewin: Yes, I agree.

It would have to be a public forum.

Unidentified Justice: Is it not correct that the whole premise of your argument is that the creche itself conveys a religious message?

Mr. Lewin: The creche conveys a religious message.

We believe the Christmas tree contains an element of a religious message.

And the menorah is... conveys a religious message although we... there is evidence in the record that the menorah has significance other than religious significance as well.

Unidentified Justice: Are you defending Lynch?

Mr. Lewin: Of course we're... yes, we stand--

Unidentified Justice: All right.

Mr. Lewin: --firmly behind Lynch.

We think, though, in this case this goes far beyond Lynch.

In other words, we think in this case even the dissenters in Lynch should recognize that the menorah in terms of its instructional value is permissible in this context.

Unidentified Justice: Thank you, Mr. Lewin.

Mrs. Litman, we'll hear now from you.

ORAL ARGUMENT OF ROSLYN M. LITMAN ON BEHALF OF RESPONDENTS

Mr. Litman: Mr. Chief Justice, and may it please the Court:

The issue posed... the question posed in this case is whether the Establishment Clause limits at all the government's display of religious symbols during not only Christmas day but during the period, in this case, 45 days, including, preceding, and following Christmas.

Now, the view taken by the Petitioners, the City and County, apparently is that somehow by reason of the fact that Congress has recognized that December 25th is a federal holiday, and because presidents have made proclamations, and the state has recognized it as a state holiday, that somehow that action trumps the Establishment Clause.

We don't think there is any necessity for this Court to take that view.

We don't think this Court said that in Lynch, and it is perfectly appropriate to view those recognitions of Christmas as a holiday in terms of the states being allowed to celebrate its secular aspects, but not in terms of, as counsel for the county has argued, having a mass in the courthouse, having symbols in the courthouse.

I think it's important for this Court to understand that there are two displays here.

Justice Stevens, in terms of your question about does the creche require the menorah, the Court should understand that the creche stands a one.

It is in the courthouse, and it is in the most prominent and most public place in the courthouse.

Let me dispel the impression that counsel gave when he suggested that the record shows that only... that 90 to 95 percent of the people don't see it.

That was never found as a fact in this case nor could it have been because it was so inherently incredible.

That same witness testified at page 158 of the record that that is the most beautiful and most public place in the courthouse.

And, the Third Circuit found specifically that it was in a public place where people would see it.

The second display is the display involving the manorah.

That is in another building by another governmental body.

The creche is the county, the menorah is by the City of Pittsburgh... and that menorah is not on the steps of, but on the face of the building itself.

Unidentified Justice: And it is with the Christmas tree?

Mr. Litman: That is exactly correct, Justice Rehnquist.

Now, we take from Lynch that the key question in evaluating governmental displays is whether the display amounts to government endorsement of religion, of a... of a particular... or of a particular religious message.

That is to say, does the display send a message to non-adherents that they are outsiders, not full members of the political community, and the accompanying message to adherents, that they are insiders, favored members of the political community?

This Court in Lynch held that a nativity scene did not do that.

These displays do, and they do so for reasons that are constitutionally important and meaningful.

And I'd like to just briefly identify three of those.

First--

Unidentified Justice: Well, the... the two displays are, are somewhat different, aren't they, Mrs. Litman?

Mr. Litman: --They are totally different displays, Justice Blackmun.

Unidentified Justice: But you take the position that you're supporting both of them in your position?

Mr. Litman: We take the same position as to both of them.

That is, that both of them violate the Establishment Clause.

Unidentified Justice: From your point of view, the county one is easier, isn't it?

Mr. Litman: Well, Justice Blackmun, I think that the county one could be considered to be an easier one in one sense.

That is to say that the display of the nativity scene here... and there have been a lot of words said by counsel and in the briefs as to what that display conveys.

But we produce that at pages 3 to 8 of the joint exhibit volume, and I think page 7 particularly reflects the nativity scene as... as it was so that you can see with your own eyes of the impression conveyed by the nativity scene and see whether indeed you feel that the message attested to by the law clerk whole judge's chambers were in that building who had to pass that nativity scene many times a day and had to make his way past it because it takes up over half of the staircase of the main landing... when he said that looking at that scene it evoked in him a memory of when his people... in the middle ages when his people were persecuted and forced to live in ghettos.

Unidentified Justice: Unembellished by anything except flowers?

Mr. Litman: Yes, Justice Blackmun, and I think that it is significant that both Father Swiderski, who testified saying that this profaned his symbol to have it there between the signs of the county commissioner here, the official signs, the controller and the treasurer here, and the nativity scene, which he testified was similar to the kinds one sees in a, in a Catholic Church.

And Ellen Doyle, one of the Plaintiffs who is a religious Catholic, said the scene was reminiscent of the ones in a Catholic Church.

Unidentified Justice: Mr. Lewin's point is that precisely to eliminate any such misperception on the part of this young man, it would be good to have a menorah there as well.

Mr. Litman: Well, of course, Justice Scalia, I would assume that perhaps Mr. Lewin would like a menorah next to the nativity scene, although that... that wasn't asked.

And his point, yes, is that next to the Christmas tree--

Unidentified Justice: Uh-huh.

Mr. Litman: --which is the premise of his argument... he says that the Christmas tree by itself sends a religious message, and, therefore, that necessitates that the city have the menorah as well.

That's for the second display.

But it's very important to recognize that what we're talking about here is not any displays by Chabad, the intervenor, not by the people... no one exercising... free exercise rights.

These displays, each of them, is by the governmental body.

They are gratuitous displays of--

Unidentified Justice: It was in Lynch--

Mr. Litman: --selected--

Unidentified Justice: --It was in Lynch too, of course.

Mr. Litman: --Yes.

Yes.

Lynch was, too.

But unlike Lynch, these displays are at government headquarters where the presence of government is pervasive and unmistakable.

Not only that, the buildings are courthouses much like this one where certain classes of citizens are compelled to come, under compulsion of law, and which constitutes buildings, we would think that, irrespective of whether they bear a sign such as this one does, "Equal Access Under Law", that every citizen should come to and does come to with the expectation--

Unidentified Justice: Well, where--

Mr. Litman: --that he or she will be treated equally irrespective of religion.

Unidentified Justice: --Where was it in Lynch?

Mr. Litman: In--

Unidentified Justice: I had the impression it was in a place that it would be even more difficult to avoid.

Mr. Litman: --It... it--

Unidentified Justice: And it was clear that that was a governmental display, wasn't it?

You really want us to make a distinction on the basis of whether, whether it's in a... on government property even though the display is obviously a government display, is obviously in a place where a lot of people nave to see it?

Mr. Litman: --Justice Scalia, I think that the, the decision in this case should hinge on the confluence, the combination of all three factors.

And that is to say whether here, in these buildings where you have government engaged in... what the court said in Ball was a symbolic embrace between church and state where you have the kind of fusion of church and state that this Court has struck down in Larson.

And where you have symbols that are undilutedly, intensely religious.

That there is no question that these symbols convey the prohibited message to, to outsiders, to non-adherents, that they are outsiders in the political--

Unidentified Justice: Counsel, why did you drop any claim about the carols that were sung?

Mr. Litman: --I would like to, to address that.

Justice Marshall, with respect to the carols, let me dispel the notion that's been created that somehow these displays all hinge together on the carols.

This display, the creche where the carols were sung, stands for 45 days.

The carols are sung for less than 24 hours of that entire period.

During the six-plus-week period, a less than three-week period is devoted to carols, and it is only at the lunch hour that, that anyone comes in.

Justice Marshall, we did not raise the carols because what was... that was not a part of the original complaint.

But the critical thing here is that the nativity scene--

Unidentified Justice: You don't think--

Mr. Litman: --stands--

Unidentified Justice: --the carols had any connection with religion?

Mr. Litman: --I think... I think they... they very likely right, Justice Marshall.

Unidentified Justice: Well, why did you drop it?

Mr. Litman: Oh, it wasn't dropped, Your Honor.

It was not raised in this case, and we could not claim here that it had a relation because, indeed, it was not made part of the case.

And the significant thing here is that the nativity scene and the menorah displays stand alone.

They are 24-hour, round-the-clock displays.

Unidentified Justice: Is that going to be the line?

One line is this was on government-owned property as opposed to simply being obviously done by government in a place where all citizens have to see it.

Now, the second line is 24 hours versus 40 days.

Isn't it clear that if this is bad, that carols are bad, too?

I mean, assuming that it's... that they're not Santa Claus carols.

I mean, you're talking Silent Night and religious carols.

Mr. Litman: In this case not, Justice Scalia, because the... well, in this case not so clear because the carols are done by outside groups.

The nativity scene, however, and the menorah displays are for those respective governments, their pronouncements.

It's government speech that we're talking about with--

Unidentified Justice: Mrs. Litman--

Mr. Litman: --respect to the displays.

Unidentified Justice: --do you think that the city and county government can open up a courthouse or other public building to allow carolers to come in and sing at holiday seasons, and presumably other groups as well, at appropriate times?

Mr. Litman: Justice O'Connor, with respect to that... and, of course, that is not the question before the Court... I think that one could raise a question as to the propriety of singing one religion's carols.

But we have not pressed that claim in this case.

Unidentified Justice: So, you take the--

Mr. Litman: Nor is it--

Unidentified Justice: --position that a public building cannot become a public forum, in effect?

Mr. Litman: --This building... neither the courthouse... certainly the courthouse is in no way a public forum.

And the City-County Building... and we have to be careful to distinguish.

What we're talking about are not the outside sidewalks or steps.

We're talking about the face of the building, such as this.

Unidentified Justice: Well, you don't think--

Mr. Litman: We don't have a public--

Unidentified Justice: --that a public body can permit groups to come in and sing religious songs?

Mr. Litman: --I think... I think a public body could permit groups to come in, Justice O'Connor, and we have not argued that they cannot.

But in this case, what we are presented with is whether a public body can make pronouncements.

Unidentified Justice: Yes, but we're talking about what the Establishment Clause would permit under your theory.

And the next case is down the road.

Mr. Litman: With respect to displays where we are... where we are clearly, in, in this... in this case and in cases like it, in cases where you have the displays, we are clearly focusing on government's action.

And we know that the Establishment Clause traditionally has been... has been held to be a limitation on what government may pronounce.

Unidentified Justice: Oh, if there was a sign on this creche that said,

"This creche was hand-painted and donated and has been put here by the Knights of Columbus. "

or the First Presbyterian Church, that would be okay, then?

It would be like the carols.

Mr. Litman: I think not, Justice--

Unidentified Justice: It wouldn't be the government doing it.

It would be the First Presbyterian Church doing it.

Mr. Litman: --I think not, Justice Scalia.

And I think not for the reason given by Judge Flor in the United Jewish Congress case versus Chicago, where there were six disclaimers.

That if you put a frankly... an intensely religious display--

Unidentified Justice: Uh-huh.

Mr. Litman: --in a building that is so closely linked, that has this symbolic link with government, you can't dispel the concept that government is endorsing it.

And let me say--

Unidentified Justice: That's a very rational position until you say that carols are okay.

Mr. Litman: --Well, I don't... I don't say that the carols are okay if the government is doing that, Justice Scalia.

Unidentified Justice: No, the government isn't singing the carols.

It's letting groups come in to sing the carols.

Just as it's letting groups come in to put up the creche.

Mr. Litman: If I have given you the impression that I... that I said carols are okay, I have misled you.

Unidentified Justice: Okay.

Mr. Litman: With respect to the sign, incidentally--

Unidentified Justice: Mrs. Litman--

Mr. Litman: --Yes, Justice Kennedy.

Unidentified Justice: --does the government have a duty to accommodate religion?

Mr. Litman: I, I believe that... it does, Justice Kennedy.

But in this case one of the critical factors is that we don't have accommodation.

This is not the case--

Unidentified Justice: Well, I, I, I understand.

But at same point... and that certainly precludes the appearance of hostility to religion, does it not?

Mr. Litman: --I, I think... I think clearly that it does.

Unidentified Justice: Would you say that at some point a... an attempt by the government to purge religious symbols from our life can constitute hostility to religion?

At some point.

Mr. Litman: Well, I have not actually thought about the concept of having government purge it, but I would think clearly it appears to me from your question that, yes, there would be a point at which it would be violating the free exercise rights we all have.

The critical--

Unidentified Justice: So, if... suppose that the government officials at the inauguration left during the invocation that preceded the Presidential Inaugural.

There was an invocation before and an invocation after.

Should government officials have left?

Mr. Litman: --I think not, Justice Kennedy, because under the--

Unidentified Justice: Or perhaps--

Mr. Litman: --McDaniel v. Paty--

Unidentified Justice: --sat down while everybody else was standing up?

Mr. Litman: --Excuse me?

Unidentified Justice: Or perhaps sat down while everybody else was standing up?

Mr. Litman: I think not.

I think that government officials, as this Court has held in McDaniel v. Paty, have free exercise rights as well.

Unidentified Justice: Isn't the reason for that that if you insisted on that action, it would show hostility to religion?

Mr. Litman: Perhaps it would show that, but I would premise my, my answer on the fact that government officials, like others, as this Court has said, have free exercise rights.

While--

Unidentified Justice: If we ban Christmas carols in all public buildings, could that be interpreted reasonably by some people as hostility to religion?

Mr. Litman: --I think, Justice Kennedy, that there comes a point at which this Court must say that the Establishment Clause does prohibit government from making certain religious pronouncements.

That point is not always easy to reach.

In this case it is because it is so far to whatever the point should be.

But, obviously, in cases there are balances required between free exercise and establishment.

What makes this case easy is there is no tension between free exercise and establishment.

In this case, this is not accommodation.

This is promotion.

This is not neutrality.

This is favoritism.

And to, and to address the, the question of would the government have to put up a menorah of a certain size, or the question of Justice Scalia of what does the government do for Moslems, the answer is the government does nothing for Moslems.

And even the... that is, the county, and the City of Pittsburgh doesn't either.

But the, the display of the City of Pittsburgh, this frankly Judeo/Christian symbol, certainly conveys--

Unidentified Justice: Did Moslems request that something be done for them?

Mr. Litman: --No, they did not, Your Honor.

But, but that brings into... into question the issue of in order for a government to be neutral, as this Court has insisted it must be, may it take the position that it can sit back and wait for, for religions to ask?

Unidentified Justice: Well, certainly one thing... one way it could justify doing that is, we were told by opposing counsel that the Moslems simply do not want something like that.

So that perhaps if they don't ask it means they are not in the least bit desirous of having a public display.

Mr. Litman: That might be the case, but, but what the record showed in this case, what Malik Tunador testified, was that in his religion personification of the deity... and he included Jesus Christ as one of the figures that one should not profane... that personification by figures is a profanation of, of his symbol.

But to, to focus, Mr. Chief Justice, on how does a government treat religions equally the question is... and Chabad has suggested that they sit back and wait to be asked... and perhaps it would mean that they don't want symbols.

On the other hand--

Unidentified Justice: I would... I would suppose under your theory it wouldn't make... it wouldn't help... it wouldn't help the city much if it welcomed everybody on the... all religions on the front step.

I would think that would be favoring religion.

Mr. Litman: --Here is the problem.

Unidentified Justice: Isn't that... Isn't that right?

Mr. Litman: I think as between the view of favoring religion and non-religion, yes, that would be correct.

Unidentified Justice: You would still be here--

Mr. Litman: But here--

Unidentified Justice: --You would still be here even if the Moslems requested and they were on the front steps and everybody else was that wanted on.

Mr. Litman: --Justice White, that would be the case.

However, in this case you have the added problem that these displays are frankly denominational, frankly non-neutral.

They, they, they have the preferential kind of treatment that this--

Unidentified Justice: Well, if--

Mr. Litman: --Court struck down.

Unidentified Justice: --there were ten different ones, I suppose each one of them would be denominational.

Mr. Litman: Well, that, that, that might... that is so.

But the problem is that what we have here is one that is frankly Christian and one that is... if we accept Mr. Lewin's argument that a Christmas tree gives a Christian message.

If we don't accept that, then there's no reason, there is no basis to having a menorah--

Unidentified Justice: Do we have to decide that question to decide this case, do you think?

Mr. Litman: --We think, Justice O'Connor, that to... that to accept Mr. Lewin's position this Court is compelled to decide that.

I think absent that... and we don't think it is preserved for appeal... but, absent that as a basis, they certainly can't say that the menorah celebrates Christmas.

And their... its whole premise in being there is, they say, to counterbalance what they say is the Christian message delivered by the Christmas tree.

But the kind of preferential treatment you have here is the kind this Court said it would not accept and it struck down in Thornton v. Caldor.

The, the kind of neutrality that we don't have here is the kind of neutrality this court insisted on in Larson.

And there is this problem, Mr. Chief Justice.

As you indicated in your dissent in Larson in dealing with the Unification Church, what if the city gets a request, if somebody gives them a picture of the Reverend Moon.

Now, do they have to put that up or will the government then be involved in deciding is the Unification Church a religion?

And what do they do with Scientology or, or, or with groups that have no symbols.

Or, of course, with--

Unidentified Justice: I think it would... it would have to be a group that has a symbol that is related to the celebration of the particular season that we said in Lynch allowed the government to enter into this field in a, in a special area where it can't normally do it.

Mr. Litman: --Well, of course--

Unidentified Justice: What's distinctive about the menorah is the Jews celebrate the same season in a different aspect.

And if there was another group that celebrated the same season, presumably... it for some reason Reverend Moon was celebrated at Christmas time, which would seem unusual to me, I suppose you'd have to put his picture up.

Mr. Litman: --Justice Scalia, of course, the Petitioners here urge that what justifies the... ignoring the prohibitions of the Establishment Clause at this time is that Petitioners say that Lynch said that during this amorphously defined Christmas season, however long that is, one can put up--

Unidentified Justice: Forty-five days.

Mr. Litman: --Well, 45 days here.

But if during this 45 days one can put up symbols related to Christmas and then they get... under that umbrella they put in the menorah because it happens that the... that the Jewish religion has Chanukah at that time... let me point out, however... and I think it's of critical importance in deciding the case... that this Court understand that the impact of these symbol on religious minorities in this country is very, very strong.

The feeling... aside from Chabad, the Court will note that not only the Jewish law clerk and the Jewish lawyers in this case urged that these symbols not be permitted, but with unanimity, the, the, the majority of the Jewish population in this country have filed briefs here urging this Court--

Unidentified Justice: Well, wasn't that true--

Mr. Litman: --not to--

Unidentified Justice: --Wasn't that true curing Lynch, too?

Mr. Litman: --It was true in Lynch.

But the significant thing here, Your honor, is that, I hope it will underscore for the Court, that they would rather not have... and they asked this Court not to permit government to endorse their symbol, the menorah, rather than have to suffer it at the cost of having the--

Unidentified Justice: But that's--

Mr. Litman: --Christian symbol, the creche--

Unidentified Justice: --apparently a disagreement among different sectors of the Jewish faith.

Mr. Litman: --Well, I think not.

Well, it, it, it may be.

And this one sector of the Jewish faith doesn't... although... although until today they have never taken a view with respect to the creche.

Their intervention here has been limited to the, the menorah.

But the great majority... and you have briefs as amici here from all over this, this country, the Jewish populations urging this court not to permit either of these displays.

And knowing, with the history that they... that they have had, with the many years of living under governments that used religious displays not to foster tolerance and love among religions but to foster intolerance and hatred and bigotry, and knowing that when, when their own religious--

Unidentified Justice: Mrs. Litman, what do you do about Christmas?

Mr. Litman: --Excuse--

Unidentified Justice: What do you do about the federal government declaring Christmas to be a holiday?

Mr. Litman: --I think that... I think that--

Unidentified Justice: Why is that not bad?

Mr. Litman: --you say... that is perfectly fine, Justice Scalia.

We would not object to December 25th.

We think it is a, a, a valid holiday similar to this Court's decision in McGowan where they said that Sunday had secular reasons.

But we don't go on from there and embrace the county's notion that somehow that validates or wipes cut the Establishment Clause for 45 days.

Unidentified Justice: Well, isn't that because--

--What if Congress next year declared Good Friday to be a holiday in the Christian... the Friday before Easter?

Mr. Litman: If Congress did that, I think an argument could be made, Justice Rehnquist, that perhaps it was accommodating or recognizing that many people take off on that day anyway.

I don't think that that hypothet is as clear as the... as the case of Christmas, which is celebrated clearly by the majority.

Unidentified Justice: Well, isn't the reason for that... it's because everyone knows that it's not an endorsement?

In your earlier answer to the Chief Justice you said that other groups object to this endorsement of religion.

But that's the issue, isn't it?

Mr. Litman: Yes, of course, that's the issue, Justice Kennedy.

And the reason that it is an endorsement here is because where it is.

Each of these governments has reached out to link arms with a religion.

They have accepted, they have embraced, frankly evangelical symbols.

With respect to the nativity scene, this one doesn't say, like the one in Lynch, "Season's Greetings" or "Happy Holidays" or even "Merry Christmas".

This one says, "Glory in Excelsis Deo", a quotation from the gospel of--

Unidentified Justice: Well, would the message be different if it said "Season's Greetings" and had a few reindeer and candy canes around, and other displays, such as in Lynch?

Mr. Litman: --Justice O'Connor, that is certainly something that the Court would, would have to consider, although we would suggest that that kind of scene would not be appropriate in a courthouse in any event.

The, the easy part about this case is that there--

Unidentified Justice: The Constitution doesn't address--

Mr. Litman: --are those symbols.

Unidentified Justice: --itself to what's appropriate.

It speaks in terms of the Establishment Clause and the Free Exercise Clause.

Mr. Litman: I'm sorry.

I didn't hear the first word you--

Unidentified Justice: So, is the message of endorsement different if it's surrounded by these other objects?

Mr. Litman: --I think that the message of endorsement in this case, Justice O'Connor, comes about from all three factors.

Where the, the, the symbol is, its, its identity, the, the imprimatur of the--

Unidentified Justice: Yes, I asked you--

Mr. Litman: --state is unconscionable.

Unidentified Justice: --if it would be different if it were surrounded by the other things--

Mr. Litman: I think--

Unidentified Justice: --such as in Lynch.

Mr. Litman: --I think... I think that it would not be permissible, but I think it would be a different display.

It would not have the--

Unidentified Justice: Why?

Because of its location?

Is that what it boils down to?

Mr. Litman: --No.

No.

I think not, Justice O'Connor.

But I think when you have the candy canes and the Santa Claus, one might more easily be able to say they're not getting a religious message.

Where you have a nativity scene, as this one, or a, a menorah, where none of those are there, then the, the religious message is undispelled--

Unidentified Justice: What about poinsettias and wreaths?

I don't think there were any poinsettias in Bethlehem.

Why isn't that like a candy cane?

Mr. Litman: --Well--

Unidentified Justice: Or a Christmas tree?

Or... or--

Mr. Litman: --it's one of--

Unidentified Justice: --Or wreaths?

I don't know that that's... is that part of a secular or part of the religious?

Mr. Litman: --Well, I think in this case, Justice Scalia, it's clearly part of the frame around the, the nativity scene.

And I think if you look at it, you'd have to agree that it enhances and, and makes more prominent the nativity scene.

Unidentified Justice: I don't understand your endorsement point, at least with respect to the Christmas tree and the menorah.

How could you possibly be endorsing either Christianity or Judaism when you have symbols of either?

Now, I can understand how you might say you are endorsing religiousness by acknowledging the religiousness of the people, and this is a significant religious holiday for, for both of these groups.

But as for endorsing one sector rather than another, how could you possibly be?

Mr. Litman: We think what you're endorsing in that case, Justice Scalia is Judeo/Christian symbols that totally ignore in an appalling lack of appreciation for the Moslems, the Hindus, the Buddhists in the population of Pittsburgh, the ever-increasing number of Asian-Americans whom we are in the process of welcoming to our country who don't adhere to the Judeo/Christian symbols, but who are nevertheless part of what, what is, we believe, embraced and protected by the prohibitions of the Establishment Clause.

And, and we think that by... by adhering to the concept that government must remain neutral... we have managed... this country has managed over the last 200 years to preserve a very important right that the framers set for us when they... when they wrote the First Amendment.

And to say, as counsel does, that we can now kick over all of the jurisprudence of this Court on the Establishment Clause, that suddenly we put in a new provision talking about coercion... and he, he neglects to mention to the Court that the same kind of indirect coercion is present here, as the Court found in Engel... but this court has never required coercion.

Their interpretation means that this Court would say that the framers, in enacting the Establishment Clause, enacted a total redundancy because, of course, it would have no meaning.

Unidentified Justice: Thank you, Mrs. Litman.

Mr. Buscemi, you have four minutes remaining.

REBUTTAL ARGUMENT OF PETER BUSCEMI ON BEHALF OF PETITIONERS COUNTY OF ALLEGHENY AND CITY OF PITTSBURGH

Mr. Buscemi: Your Honor, thank you.

The position of the Respondents is basically inconsistent with what this Court decided in Lynch.

Virtually all of the arguments that the Court has just heard would have been equally applicable to the situation in Lynch, a situation in which the Court ruled that the Christmas display of the city was permissible.

As the Court said in that decision, the display was no more an advancement or endorsement of religion than the Christmas holiday itself.

Unidentified Justice: I must say, counsel, that 45 days of a display in a courthouse is a very substantial commitment of a neutral form to an image that is certainly conceded by all to be religious.

Mr. Buscemi: Your Honor, I don't know precisely how long the display in the Pawtucket case was in the park, but I suspect that it was there throughout the Christmas shopping season, because it was right near the downtown shopping district.

And the display there, of course, took up far more space than the display here, in a far more public place, a place seen by far many... far more people than in this case.

Unidentified Justice: Well, there was a lot more material in it than here.

Mr. Buscemi: Well, yes, there was, Your Honor.

But the nativity scene itself was far bigger than the one here.

The simple point is that as this court said at the very beginning of its decision in Lynch, there is an affirmative... the Constitution does not require a complete separation of church and state, it affirmatively mandates accommodation, not merely tolerance, and forbids hostility toward any.

Anything less would require the callous indifference that this Court has said it was never intended by the Establishment Clause.

And the purging of religious symbols, the total elimination of all recognition of religion in our society from public buildings or other public grounds is something that the Constitution has never required and that this Court has never required.

As Judge Weis said at the conclusion of his dissent,

"Lynch advocated an approach of moderation, understanding, and a sense of proportion in ruling on displays commemorating the Christmas season. "

"The Establishment Clause... such displays constitute simply a tolerable acknowledgement of beliefs widely held among people of this country. "

"They pose no threat to religious freedom, but their suppression forebodes ominous consequences. "

Your Honor, the Petitioners in this case support those views and believe that the displays in this case should be sustained for essentially the same reasons that the displays in Lynch were--

Unidentified Justice: Mr. Buscemi, can I interrupt?

You're really... your position then is that basically there is a judgment to be made that the extremes on either side are really not... not realistic alternatives, that we have to make a judgment as to whether the particular display in its particular setting is too much of an endorsement of religion.

Is that right?

That's what those words... the message those words gave me.

Mr. Buscemi: --Well--

Unidentified Justice: Obviously, you're not going to say you've got to take "In God We Trust" off the coins and everything like that.

Nobody would go that far.

So, somewhere along the line somebody has to make a judgment in these difficult cases.

Isn't that right?

Mr. Buscemi: --That's exactly right.

And I think, in fact, one of the characters--

Unidentified Justice: And if there is some... what seems to be an arbitrary line is because somewhere you've got to draw a line.

Mr. Buscemi: --It's precisely what the Court said--

Unidentified Justice: And it would not be ridiculous to say--

Mr. Buscemi: --in Lynch.

Unidentified Justice: --the line is the difference between a commercial display such as you had in Lynch, and a noncommercial display such as you have here.

That's not a frivolous line, is it?

Mr. Buscemi: Well, the question of whether the display in Lynch was a commercial display I think would raise a factual issue.

I don't know that the display--

Unidentified Justice: No, but there's all sorts of secular aspects of that display that are not repeated in this display.

Mr. Buscemi: --Well, that's true.

That's--

Unidentified Justice: And the location was dramatically different, too.

Mr. Buscemi: --That's sort of the "two plastic reindeer rule" of the "Saint Nicholas too" test and--

Unidentified Justice: And what's so wrong... why is that any more arbitrary than any other line that you're going to have to draw in this area?

Mr. Buscemi: --Well, it may--

Unidentified Justice: You put a ridiculous name on it, but nevertheless there is a difference, isn't there?

Well, it may not be more arbitrary, but it seems to me that it does depart from the line that this Court drew in Lynch, which was that the critical consideration was the context of the holiday setting, rather than the accompaniment of the nativity scene by other secular symbols.

Because, of course, then the next question will be are two reindeer enough or do you need eight?

Or, going in the other direction.

Is it all right to say mass in the courtroom?

Mr. Buscemi: --Well, that's true.

Unidentified Justice: You can go in either direction on these things.

Mr. Buscemi: At some point... that's what the Court said in Lynch.

There's line-drawing and no per se rule is possible.

Unidentified Justice: Thank you, Mr. Buscemi.

Mr. Buscemi: Thank you.

Chief Justice William H. Rehnquist: The case is submitted.

Attribution:

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Featured:

Texas Monthly, Inc. v. Bullock - Oral Argument

Sun, 06 Feb 2011 03:45:15 +0000

Case:

Texas Monthly, Inc. v. Bullock

Media File:

87-1245_19881101-argument.mp3

Related Transcript:

87-1245_19881101-argument.xml

Transcript:

ORAL ARGUMENT OF ROGER JAMES GEORGE, JR., ON BEHALF OF THE APPELLANT

Chief Justice William H. Rehnquist: We'll hear argument now in Number 87-1245, Texas Monthly versus Bob Bullock.

Mr. George, you may proceed whenever.

Roger James George Jr: Mr. Chief Justice, may it please the Court:

Texas Monthly is a general interest magazine published by a commercial corporation in Texas with circulation of roughly 280,000 copies.

It covers various topics of interest to people in Texas ranging from politics to religion, to sports, to food, to social occasions, to all sorts of things, to humor.

It is not published by a religious faith, and it is not a religious magazine.

It is simply a commercial magazine.

It brought this lawsuit in the Travis County District Court in Travis County, Texas, to recover $149,107 in sales tax that it had paid in protest under the applicable Texas procedure for subscription sales during a period in 1985 when the state legislature had imposed a tax on subscription sales of magazines.

Now, the Texas sales and use tax system is a system similar to sales and use tax systems throughout the country.

Generally, any tangible personal property that someone purchases or uses in Texas is subject to the tax.

Thus, if I go across the street from my office and buy a pair of socks, I have to pay 6.125 percent of the purchase price to the State of Texas.

If I buy a typewriter, I have to pay the tax.

If my wife brings back a blouse from Washington after this argument, she's supposed to pay a use tax when she puts it on because she owes 6.125 percent of the purchase price for using it in the state of Texas.

Unidentified Justice: Is that down there?

Roger James George Jr: Well, that was one of the issues that raised in the court below, in the District Court, and our contention was that that was a provision that was ignored and ignored involving sales and use taxes generally.

There are a plethora of exemptions from this tax.

Horses and mules, for example, that are used as draft animals are exempt.

As one might expect in Texas, drill stem bits for drilling equipment, all drilling equipment is exempt from the tax.

And various other items are exempt from the tax ranging from fertilizer to airplanes to certain shrimp boats.

Now, two of the exemptions that exist in this tax are relevant to the case this court has before it today.

Unidentified Justice: Why aren't the others?

Roger James George Jr: Well, the others may be relevant and if so that there is a system of general exemptions or random system of exemptions but two are most relevant to the court's consideration today.

Unidentified Justice: So, you don't claim that there's an unconstitutional distinction between mules and this magazine?

Roger James George Jr: Well, I suppose that would be an interesting case, Your Honor, but I don't have to make that contention today, and I'm not here trying to make that contention.

Unidentified Justice: Yes.

Roger James George Jr: I am here concerning only two of the exemptions, really one of the exemptions.

The first exemption is one to... is an illustration, and that is there is an exemption... and I'll refer to them by the last three digits of these code numbers... Section 310 of the statute... which is a general exemption from tax for charitable, religious, civic organizations, volunteer fire departments, the Boy Scouts, and the Chamber of Commerce.

If any of those institutions... Goodwill Industries, for example... buys something... the Methodist Church... when my church buys something and uses it, it does not have to pay the tax.

There is no exemption for the sale of goods that is generally applicable to those institutions.

So that if the St. Vincent de Paul Store down on Third and Brazos Street in Austin or the Goodwill store sells my magazine or sells a used bicycle or sells a used book, they have to collect the tax and remit it to the state.

And if the tax isn't collected, the state comes after them for the tax.

Unidentified Justice: If they buy it, they are exempt?

Roger James George Jr: Yes.

It's the use of the tax... you have... the tax works so that people who use it are subject to tax except for religious, charitable, educational, the Boy Scouts and all those people.

But if those institutions sell anything--

Unidentified Justice: How about the sale by a church of a religious item, a Bible or a crucifix or something of that sort?

Is there an exemption?

Roger James George Jr: --Now, we come to the subject of this lawsuit, which is the exemption.

The statutes of the state of Texas tax the crucifix.

If they sell the crucifix, they've got to collect the tax.

The regulation involving this very statute.

If they sell a film about a religious subject, they have to collect the tax from the taxpayer.

The regulation specifically provides that if they sell sheet music... for example, if someone sells the Methodist hymnal, if my church sells a Methodist hymnal, that's sheet music, and I suppose the Comptroller of the State of Texas requires them to collect the tax and remit it to the State of Texas.

Now, the exemption that we're here about today reads that exempt from these taxes are periodicals that are published or distributed by a religious faith and they consist wholly of writings promulgating the teachings of the faith and books that consist wholly of writings sacred to a religious faith are exempt from the taxes imposed by this statute.

Unidentified Justice: Mr. George, if you prevail on this argument, do you get your money back?

Do you get a refund?

Roger James George Jr: That's right.

And the trial court--

Unidentified Justice: Is there any question about that?

Roger James George Jr: --No, sir.

In the trial court we won the judgment for $149,107.73, I believe, plus interest, and that's what we're trying to recover here today.

Unidentified Justice: Why is that?

I mean, why wouldn't it be possible, at least, if you were to prevail that the tax would be extended by Texas to religious periodicals--

Roger James George Jr: Because the court... excuse me, ma'am.

Unidentified Justice: --so that you wouldn't benefit from it?

Roger James George Jr: Excuse me, Justice O'Connor.

The system that this court has recognized, and it's every court except the courts of Arkansas and Tennessee and I can find, recognize the rule that courts can't impose taxes.

The legislature of the state of Texas has exempted these publications, period.

This court nor other court can change that decision.

Its only remedy that as taxpayers of under-inclusive statutes have, for generations have is that they don't have to pay the tax until the legislature changes the law and taxes all the people that are similarly situated.

And that's--

Unidentified Justice: Well, does the state concede that you get your money back if you prevail?

Roger James George Jr: --No, no, they do not.

They have contended that the rule ought to be otherwise.

Now, the rule in Texas has, since 1885, been in my favor under state law.

There is the famous Pullman case--

Unidentified Justice: But the state appellate court did not reach this issue, just the state trial court?

Roger James George Jr: --The state trial court said.

The appellate court, of course, ruled that the statute that I contend is unconstitutional wasn't unconstitutional and hadn't reached that issue.

This dissenting judge--

Unidentified Justice: So, I should think that's an issue of state law that's not before us and that's still open?

Roger James George Jr: --Well, I believe that's an issue that... well, I suppose that the state... a possible remand to the court would be possible.

Technically that court did not reach that issue.

The sitting judge, Judge Carroll, in that court, did say that in course the remedy was that we don't have to pay the tax.

Unidentified Justice: But so, then, we're not certain that you're going to get your money back?

Roger James George Jr: Well, we have some... I believe every court in the state of Texas to rule on that has ruled in my favor.

The Comptroller and Attorney General of the State of Texas take a contrary position in this case.

Unidentified Justice: Well, in any event, you have to get over this hurdle first before you can get the--

Roger James George Jr: I've got to win the merits before I would get to that issue, but--

Unidentified Justice: --And why is it relevant for us at all?

Roger James George Jr: --Well, I don't believe it is relevant.

This court addressed this very argument in the Arkansas Writers' Project case.

Unidentified Justice: Well, do we often make decisions that have no meaning?

Roger James George Jr: No, you don't, and that's the reason why you decided in the Arkansas Writers' Project, the Arkansas Times got its money back.

It was suing to get money back it had paid under the Arkansas statute, and this court entered a judgment allowing it to recover that money.

Unidentified Justice: Well, that was treated as a question of standing, though, wasn't it, in Writers'?

Roger James George Jr: I suppose it's either... its standing or remedy is a two-sided coin, obviously.

Unidentified Justice: Now, Ragland treated the question as one of standing, did it not?

Roger James George Jr: Yes.

Well, the Supreme Court of Arkansas in that case--

Unidentified Justice: No, at this court.

Roger James George Jr: --decided that the remedy wasn't available, and this court dealt with it as a standing issue.

Do you have standing to bring it?

And it was exactly the same fact situation in exactly the same pattern; that is, the Arkansas magazine, the Arkansas Times sought to recover taxes it had paid and tried to get back, and the Arkansas Supreme Court said you're wrong on the Constitution, but if you were right, you couldn't get your money back because that's not the appropriate remedy.

This court in its opinion in April of '87 said no, that's wrong, you have standing to bring it.

Now, I think that given the court's decision in the Supreme Court of Arkansas that, in fact, this court has decided that issue; that at least as a matter of law of the United States that my client is entitled to bring this action and seek this remedy and if it is entitled to get it back.

Now, again, Arkansas decided the remedy wasn't available.

This court reversed and rendered in favor of the taxpayer, and I believe that case is directly on point.

Now... it's as on point as any case you're likely to see in this court.

Now, my client brought this action raising three basic kind of arguments.

The first were under the... the first two were under the Minnesota Star issue that we raised: One, that the statute as applied in Texas was discriminatory against in-state magazines, that there was a policy of not collecting the tax if the magazine was distributed in Texas by somebody who wasn't a Texas resident, and that as applied the system discriminated against subscription sold magazines.

The District Court chose not to find any facts or deal with those issues at all and simply determined that the statute was unconstitutional because it constituted a discrimination based upon the content of the speech; that is, if a magazine contained, in the words of the statutes,

"It consisted wholly of writings promulgating the teachings of the faith. "

the statute... the taxpayer didn't have to pay the tax.

And that was unconstitutional under the line of cases that includes this court's decisions from Police versus Mosley through FCC versus the League of Women Voters to Kerry versus Brown and a whole series of cases that say that the government cannot discriminate and impose regulations upon speech based upon the content of that speech.

Unidentified Justice: This is a subsidy rather than a regulation.

What do you think, Mr. George, about the Post Office granting of specially lower rates to educational materials?

That's one category of speech.

Roger James George Jr: Justice Scalia, that--

Unidentified Justice: Why shouldn't amusement materials get the same exemption?

Roger James George Jr: --Justice Scalia, that is a logical conclusion, the dissent that you reached in those cases, in the Arkansas Writers' case, was a logical conclusion.

This is simply a subsidy and obviously we can support the Kennedy Center, using your example, from that case.

The problem is history not logic.

And if this court will review the history of the imposition of penalties involving speech from the Stamp Acts imposed upon the English press through Grosjean versus American Publishing Company, you will see that we have had a history where sometimes legislatures impose taxes and where there is a suspicion, at least, that it was because they want to either silence or in some way chill speech.

Unidentified Justice: But you're talking there... you must distinguish between a tax that just taxes a particular activity and an exemption for a particular activity from a general tax.

Is there no difference between those two in our cases?

Roger James George Jr: Well, if you will look back at the English example of the Stamp Act taxes, the Stamp Act was a general tax, and it was applied to newspapers.

And if you will review the court's reciting of Justice Sutherland's opinion in Grosjean, you will see that that was indeed the case.

It wasn't... the Stamp Act was applied to all sorts of things, including newsprint, and there was a great outcry about that.

But, in fact, the problem is intrusiveness in my judgment.

The problem with the logical position about subsidy versus history is that my magazine, for example, my client contends every two years the legislature of the state of Texas meets, and in those sessions they have all kinds of statutes.

One time they had my clients were exempt.

The next session they weren't exempt.

And now they are.

Subscription sales are exempt, but newsstand sales aren't exempt.

Now, that back and forth, back and forth occurs in this area.

Now, each year my client writes an article, writes the ten best and ten worst legislators, and there is a great interest in that because it is a widely circulated magazine.

And there is some political careers who believe that they have been seriously damaged by being on the ten worst and some that have been greatly enhanced by being on the ten best.

Unidentified Justice: xxx--

Roger James George Jr: Right.

My problem is I cannot prove that Stan Sludder, a representative who was chairman of the committee in 1978, took that exemption out because he didn't like being on the "ten worst" list.

I can't prove that.

And the courts should not be inquiring into that.

That's why we need and why the court's majority in Arkansas Writers' Project have a salutary rule that because while exemptions from tax and subsidies have a logical symmetry... we have Justice Brennan's dissent in the Walz case involving exemption from church property... they are some similar, but not the same.

And the lack of sameness comes from history as much as logic.

Unidentified Justice: --And the threat, the threat that you're worried about would be eliminated if Texas provided that this, this tax would apply uniformly to all magazines including those sold by religious organizations and dealing with religion provided, however, that every religious organization that pays such a tax will receive a subsidy from the state in the amount of that tax that they've paid.

That would be all right?

Roger James George Jr: Well, you rapidly... from breaking this case down into its logical components, the part of the First Amendment that deals with the press and the speech you would have solved.

But the problem with the speech that you deal with the establishment clause, you certainly wouldn't have solved because it's clear there is one fundamental message.

If you start back with Everson, run through Lindlin, run through the Bowen case from last term about establishment clause cases, and that is the state cannot subsidize delivery of religious message.

Justice O'Connor's concurrence in that case says if there's nothing else clear about this area of the law about establishment clause law, you can't do that.

Now, you could not have a system that said every time I pay a dollar to the First Methodist Church in Austin, Texas, for the Methodist Layman that comes every week, that they give that church six and a quarter cents for delivering that message to me.

Now, because it is a direct, it violates every tenet of the Lemon test, and it goes to the heart of the establishment clause.

Unidentified Justice: Religious organizations do not get special mail rates?

Roger James George Jr: I don't know the answer to that.

Unidentified Justice: I think they do.

That's granted.

Roger James George Jr: And obviously they are not alone in getting that.

Unidentified Justice: Well, that may well be--

Roger James George Jr: --But the problem--

Unidentified Justice: --but they're not excluded either.

Roger James George Jr: That's true.

Unidentified Justice: Your argument is the establishment clause excludes them.

We can subsidize everybody else but not these religious organizations because if you establish the clause--

Roger James George Jr: Well, Justice Scalia, we have had since Walz a system and a recognition by this court that when you have carved out a general category of institutions, as in the Texas constitution and Texas statutes that range from the Boy Scouts to the Methodist Church, to the volunteer fire department, to hospitals, to libraries, and you give those, all those good works or good institutions a special kind of benefit, a tax break, a subsidy, as in the Bowen case.

One of the basic... basis of the court's opinion was the religious organizations weren't singled out for special treatment.

The problem with this statute is that only whatever religious faiths are, are singled out for the treatment.

Unidentified Justice: --Mr. George, I take it, then, if the exemption here applied also to publications sold by charitable and educational institutions as well as religious, you think that Walz would be satisfied?

Roger James George Jr: You would not have the establishment clause case, and if it didn't depend on the message, we'd have the kind of Regan case, Regan versus Taxpayers League, that involved the exemption for veterans' organizations and 501... 50(c)(3)(1)... I'm not a tax lawyer... exemption that involved lobbying because it wouldn't depend on the message if all those institutions could distribute magazines or periodicals or other institutions free of the message being determined.

The problem among others with this exemption is that it focuses upon the message.

Someone has to determine whether the message is the appropriate message to get the tax benefit whether it be the... it says... it has to... it has to consist wholly of the teaching of that faith.

Unidentified Justice: How do you reconcile that with our other line of cases that say that the First Amendment not only prevents... not only does not prevent special treatment for religion but, indeed, requires it in such areas as employment benefits.

Somebody who says I don't want to work on a Saturday because my faith prohibits it.

We say you have to make an exemption for that--

Roger James George Jr: Yes.

Unidentified Justice: --even though you don't have to make it for sportsmen who want to shoot on Saturday or any other people who want to do anything else on Saturday, right?

Roger James George Jr: There's no question that there's the whole line of cases, Jehovah Witness cases about working munitions plants that this court has decided.

Unidentified Justice: So, now, why is... why is special treatment of religion required there, but here it is not only not required, it is not even permitted.

Roger James George Jr: One, it is an accommodation to the exercise, and it is possible... and remember in Texas we don't have special treatment for religions except for delivering the message.

If they sell you a crucifix, they've got to pay the tax.

And in this exemption, for example, if you'll look at the last page of the jurisdictional statement, the regulation promulgated by this Comptroller says if they sell you a film, they've got to pay the tax.

It is possible that you could have a system that provided for exemptions for all religious messages or something, and that might be a different case because somehow taxing the message would be intrusive into religions.

The rationale for all of those accommodations of exercise is that we're accommodating the... we're somehow accommodating the exercise of that religious activity.

Now, here--

Unidentified Justice: But the religion clauses don't say anything, in haec verbis, about any duty to accommodate.

I can see how that would explain the Title VII accommodation cases.

But how about the ones that are based purely on the Constitution?

Roger James George Jr: --Well, those cases are based upon a concept that you are forcing someone to violate their religious tenets.

Okay?

That is, I am forcing that gentleman to work in the munitions factory on the tank turret or forego his worker's compensation, and it is against his religion to work on the tank turret.

Now, we have decided, the Court has decided as a matter of constitutional principle that you can't require him to choose between a benefit and his religion.

There would be no choice between benefit and religion to treat the delivery of this tangible good like all other tangible goods, or to collect the 6.125 percent tax.

They can give it away, they can deliver it free and there's no tax.

It's only when they get paid by the person who buys it from the religion.

Unidentified Justice: Well, is this a... is your First Amendment argument based on religious clauses or just on the First Amendment?

Roger James George Jr: Well--

Unidentified Justice: Or is it an equal protection case or both?

Roger James George Jr: --Well, the argument runs first that it's a content-based discrimination, Justice White, and thus you get Arkansas Writers' Project versus Ragland--

Unidentified Justice: Well, then, it doesn't make any difference whether it's a religious message that's discriminated for or against.

Roger James George Jr: --In my judgment, no, it does not.

Unidentified Justice: All right.

You would be here if they exempted magazines about agriculture and taxed, God forbid, magazines about oil?

Roger James George Jr: God forbid.

And I would... in connection with the Arkansas Writers' Project--

Unidentified Justice: But wouldn't you be making the same argument?

Roger James George Jr: --I would say Arkansas Writers' Project... in that case the Arkansas statute exempts religious, professional, trades, and sport journals.

And this court's opinion said that was unconstitutional.

Unidentified Justice: Because?

Roger James George Jr: Because of discrimination--

Unidentified Justice: It taxed somebody else.

Roger James George Jr: --on the base of content.

It's a discrimination based on content.

Unidentified Justice: And I suppose it could be argued that it violates the equal protection clause because it's an irrational distinction.

Roger James George Jr: Well, it's not one.

It is an irrational distinction.

Unidentified Justice: The First Amendment proved it's an irrational distinction.

Roger James George Jr: Now, I come to the religious issue only after--

Unidentified Justice: Why?

Why?

Roger James George Jr: --Why?

Because it's there, I suppose.

And when I brought this case Arkansas Writers' Project had not been decided.

Unidentified Justice: I notice you put it in your second paragraph.

Roger James George Jr: Well, I think Arkansas Writers' Project is directly, precisely on point with this case, and it is a direct decision in this case.

I didn't have the benefit of that case when I--

Unidentified Justice: Let me make a suggestion.

Maybe you got to the religious issue because you have to grapple with it to determine that this is an irrational distinction because the state is going to say... I haven't heard the state yet, but I'm sure they're going to say, you know, we're dealing with a Constitution that gives special privileges to religion.

We have a Supreme Court jurisdiction that gives special privileges to religion.

We have decided that religion is important enough that we're going to give special privileges to religion in this tax law.

Now, if it's rational for the Constitution and if it's rational for the Supreme Court, it's rational for the State of Texas.

Maybe that's why you drew--

Roger James George Jr: --Maybe that is why.

And I think I got there, however, because it seems to me that any equal protection analysis requires the achievement of a legitimate stadient and to achieve a legitimate stadient, it cannot be a law respecting the establishment of religion.

And I believe that in addition to being Arkansas Writers' Project versus Ragland all over again, this case is also a law respecting the establishment of religion as well.

Now, the reason why I arrived at that argument is because I believe both of them are correct.

Unidentified Justice: --Mr. George, do you think it would be unconstitutional to grant an exemption for crucifixes?

Roger James George Jr: For what?

Unidentified Justice: For crucifixes.

Roger James George Jr: Probably not, although the problem with crucifixes and all other religious symbols, that they are delivery of a message.

The problem is, you got to... it is clear that you can't subsidize deliveries of messages.

Now, you may be able to accommodate conduct, and somewhere physical things become conduct as in the man who won't work in the munitions plant.

Now, you would have to stop and say is that conduct or is that a message?

It is symbolic.

You could very well argue that the crucifix by its definition is a statement of your religious principles and thus is a delivery of a message.

Now, you have to accommodate the man going to the church to light the candle.

Now, how about buying the candle?

The candle, in lighting the candle may be conduct; that is, has to be accommodated.

But it doesn't... but when it is the message and delivering the message, we certainly can't subsidize it.

Now, I'm not sure how you deal with that.

I'll reserve the balance of my time.

Chief Justice William H. Rehnquist: Thank you, Mr. George.

Ms. Burke, we'll hear now from you.

ORAL ARGUMENT OF HARRIET D. BURKE ON BEHALF OF THE APPELLEES

Mr. Burke: Mr. Chief Justice, and may it please the Court:

It is the position of the State of Texas in this appeal that there's been no violation of the establishment clause; that in judging this exemption, Section 151.312, it should be viewed on a violation of an equal protection standard and not a standard involving violation of First Amendment rights.

The test to be applied should be one of a rational basis test.

The rational basis that the state asserts is that, one, it seeks to accommodate religion in the sense of being neutral towards religion and helping effectuate the free distribution of religious messages by a religious faith.

The second rational basis is that the exemption seeks to avoid any violation of the establishment clause.

The third basis is it seeks to avoid any violation of the free exercise clause of the First Amendment to the Constitution.

Unidentified Justice: What about the message of the Arkansas case?

That was just a freedom of the press case, wasn't it?

Mr. Burke: The Arkansas case, Your Honor, the way Texas views the Arkansas case is that in that particular case, you had a different tax structure than what you have in Texas.

Unidentified Justice: Well, but it was a free... a freedom of the press case?

Mr. Burke: It did involve the issue of First Amendment right, free press, yes, Your Honor.

Unidentified Justice: And here some publications are, some parts of the press are taxed and some aren't, in this case.

Mr. Burke: Texas taxes all parts of the press except for religious periodicals.

Unidentified Justice: So, some are taxed and some aren't--

Mr. Burke: The state does not--

Unidentified Justice: --based on content.

Mr. Burke: --The way the state reads Arkansas Writers' Project is that to have a First Amendment violation, there must be a tax that singles out the press as a whole and targets the press for that tax, or it must target a small group within the press.

And then, beyond that, you look to content-based discrimination.

If that is not the way the Arkansas case is to be read, then we must be judging this one a strict scrutiny approach.

However, the state doesn't see that Texas Monthly has been harmed any more than any other retailer in the state of Texas having to pay the tax.

If the court--

Unidentified Justice: I'm not sure that I understand that.

You're saying that this is not a press tax as was involved in Arkansas.

This is a general sales tax.

Mr. Burke: --Yes.

Unidentified Justice: And, therefore, the public harmed by the exemption is not just the rest of the press, but rather the entire body politic.

Mr. Burke: Yes, Your Honor.

That's the way the state views it.

However, if the Court does not view it in that manner and determines that a strict scrutiny approach should be applied in this case, the compelling state interests are the same that I have enunciated as being rational basis to sustain the exemption.

I would like to point out that if the Court so determines that there has been a constitutional violation, the state would request the court to invalidate the exemption, leave Texas Monthly subject to the tax, and remand the case to the trial court level to determine whether or not religious periodicals would then become subject to the tax under Texas Law.

Unidentified Justice: Texas Monthly would not get its money back under that, is that right?

Texas Monthly wouldn't get its money back?

Mr. Burke: Not at that point in time, Your Honor, until a decision was made as to whether religious periodicals become subject to the tax because under the current tax structure, all sales of tangible personal property are taxable.

All property brought into the state for use or shipped into the state are presumed to be subject to the tax.

Therefore, we think in arguing before the state courts that the intent of the legislature is quite clear that if the legislation is invalidated, this exemption falls, that these sales will become automatically subject to the tax, and everyone will be treated equally under the Texas tax structure.

Unidentified Justice: Ms. Burke, what if I think it's unconstitutional for the Texas courts to say after the fact, after the years have passed, we are retroactively going to subject religious periodicals to taxes?

Then I wouldn't have to remand to the Texas courts at all if I thought there's no power in the Texas courts whatever?

Isn't that a strange procedure to decide after the fact that prior sales have been subject to tax, even though the statute says on its face they are not?

How can Texas do that?

Mr. Burke: It's an unusual procedure, Your Honor.

I haven't seen this argued before, but it's no more unusual than invalidating, striking down the entire tax system here just because you have one exemption from an otherwise equal tax.

All retailers of publications are subject to the tax in Texas, including newspapers for this period of time.

Unidentified Justice: Well, that doesn't harm anybody, though, to do that.

I mean, I agree.

It's very upsetting for the state, but it doesn't tromp on any individual rights.

But I'm... the other solution that you suggest is open to the state suddenly subjects somebody to a law that was not in effect at the time the sales were made.

Mr. Burke: Of course, Your Honor, there would be a limitations time period running against the state on necessities taxes.

So, the state would not be able to go back and assess for unlimited time periods.

Unidentified Justice: Is this Appellant the only entity that has filed a protest on this theory?

Mr. Burke: No, Your Honor.

There are two other taxpayers who have suits now pending on this particular issue.

Unidentified Justice: And has the statute run as to all others, because, I take it, this statute has been repealed, the one that we're looking at?

Mr. Burke: The statute was repealed in 1987, effective October 1, 1987.

Unidentified Justice: Has the time run on any further protests?

Mr. Burke: No, Your Honor.

There's a four-year statute of limitations in Texas.

Unidentified Justice: Four-year, a four-year statute?

Mr. Burke: Yes, sir.

Four years from the time the taxes become due and payable.

Unidentified Justice: So, if we told this appellant that it could get its money back, then any number of others could file?

Mr. Burke: That is correct, Your Honor.

The state would be subjected to having numerous refund claims filed against it.

Depending, of course, some would be of larger amounts than others, depending on how the court rules in this particular case.

If the court, though, however finds that the tax itself should be struck in this instance, the state asks the Court to remand this case... not with regard to Texas Monthly... they should get their money back, but to determine from a state court perspective, let the state court determine how to handle the refund situation that might be occasioned as a result of this decision.

The state, though, just as I said before, does not view this as a First Amendment-type issue.

What we have here is an exemption--

Unidentified Justice: Ms. Burke, let me interrupt you just a moment.

Does the state have any statistics as to what the amount of tax that might be collected from exempt organizations if this exempt organization... if this exemption weren't in effect compare as a matter of percentage with the amount of revenue brought in by the state sales tax?

Mr. Burke: --No, Your Honor, there is nothing in the record and I do not have that kind of evidence since the state has not been taxing religious organizations.

Unidentified Justice: Do you have any figures in the record or that you know of what the gross revenue from the state sales tax is in any given year?

Mr. Burke: Your Honor, it is the largest revenue-raising tax in the state of Texas.

Last year alone it brought in about two-thirds of the taxes that were being paid to the State of Texas.

I don't have a dollar figure for you, but it is a substantial tax to the State of Texas.

The exemption in Section 151.312 I have heard been called basically a content-based type exemption.

The state would characterize it more in the nature of first a status-based exemption.

The first decision to be made under the exemption is whether or not the periodical is being distributed or published by a religious faith.

Then, the second part of the exemption deals whether it wholly contains writings promulgating the teachings of the faith.

The aim of this exemption, the state would submit, is to accommodate religious faiths and their adherents by exempting them from the tax on their publications which are disseminating the teachings of the faith.

It allows, therefore, religion to advance itself, but also to be neutral between church and state.

So, it's more of an activity-based exemption even though to a degree you must look at content.

It is allowing the church to be free from religious restraints in disseminating its religious messages.

Unidentified Justice: Ms. Burke, may I ask you on the status point, the first prong, what about an organization of atheists who published a magazine promulgating their views about religion?

Would that qualify for the exemption?

Mr. Burke: I believe it might, Your Honor.

I'm trying to think that the state has granted... and this is not in the record... that the state has granted an exemption to a religious faith that was an atheistic organization.

Unidentified Justice: The statute said religious faith.

I mean, you would really have to interpret religious faith to include an atheist in that.

It's rather strange, isn't it?

Mr. Burke: Yes, it is, Your Honor, but it is a belief, even though it's anti-religion.

The state has tried to extend this exemption as far as it can.

Unidentified Justice: You would interpret religious faith to include anti-religious faith?

Mr. Burke: Yes, in a sense.

Unidentified Justice: That's stretching it about as far as you can, isn't it?

Mr. Burke: Yes, but the state has tried to accommodate religion to the extent that it can, and I believe I'm correct on that.

Unidentified Justice: How in the world does that accommodate religion?

How do you accommodate religion by saying atheism is religion?

Mr. Burke: How do you... accommodation is by allowing the organization to be free from having to support the state.

It is maintaining a physical neutrality between the organization and the state.

Unidentified Justice: Wouldn't you have to name religion and atheism?

Wouldn't you have to name both of them?

And you didn't name both of them.

Mr. Burke: No, unless--

Unidentified Justice: And that was deliberate.

Mr. Burke: --the state considers atheism to be a form of faith.

Unidentified Justice: And the distinction was deliberately made by the state.

Mr. Burke: The state legislature did make a deliberate enactment to exempt religious-type periodicals being distributed by a religious faith.

Unidentified Justice: Ms. Burke, you don't take the position that this accommodation is required, do you, by the free exercise clause?

Mr. Burke: Your Honor, as I understand the free exercise clause, it does mandate that accommodation be required.

It's not just permitted; it's required.

Unidentified Justice: So, you take the position that Texas may not impose a general sales tax on religious publications?

Mr. Burke: No, Your Honor.

I'm not saying it would be an absolute violation--

Unidentified Justice: Well, that's what I'm asking.

Mr. Burke: --to impose the tax.

No, that is not the position of the state.

Unidentified Justice: Can the state impose its sales tax on the sale of candles in a Catholic church, too?

Mr. Burke: Yes, Your Honor, it could.

Unidentified Justice: Okay.

Mr. Burke: And the state is certainly not asserting that it would be an absolute violation of either the establishment clause or the free exercise clause if the exemption were not in place.

They recognize that rational bases have to meet... be drawn under the statute.

With regard to the Arkansas tax, Texas again does see a distinction there because Arkansas did tax only general interest periodicals and exempted everything else from the terms of the tax including newspapers.

Texas tax structure is just the reverse.

It taxed all publications, including newspapers, but exempted only religious periodicals from the terms of the tax.

If the exemption were not in place, as I have said, the state is not saying that the rational basis is that there would be a violation of the establishment clause, but without the exemption there would be a greater involvement between the church and the state in the sense that the church would have the authority to be subject to paying the tax, have an obligation and duty to pay the tax, and if it did not, then the state could go in and file liens against church property if there was a delinquency.

It could seek to seize the church property and sell it to pay a tax debt, and it also could freeze church bank accounts.

This is certainly a greater involvement between the church and the state than if the exemption were not present.

This also pertains with regard to the free exercise of religion.

If the exemption were not present, there's a possibility of a violation under the free exercise clause in that it has previously been held that Jehovah's Witnesses, for example, going out and disseminating their religious messages by selling publications containing their religious messages when they were required to pay a tax and obtain a license before they could engage in these activities, this was held to be a violation of their free speech rights and also a violation of their free exercise rights.

Under the Texas Sales and Use Tax Act, as it was structured during the time period in question, what you had was a situation that engaged in operation as a retailer within the state of Texas, you had to post a bond first.

Then you had to obtain a permit, and then you had to collect and remit the tax or remit the tax to the State of Texas.

Without the exemption in place there is a possibility of a violation of the free exercise clause of the First Amendment.

Unidentified Justice: Ms. Burke, I'm not sure... were you saying that one of our cases we have a Jehovah's Witness case that rested on establishment clause grounds?

Mr. Burke: Free exercise clause grounds.

Unidentified Justice: Free exercise clause grounds?

Mr. Burke: Yes, which was Murdock versus Commonwealth of Pennsylvania.

Unidentified Justice: Murdock.

And you're saying just as we, just as the state couldn't... must make an exemption from a general licensing law for the sale of those pub... was it clear that that was a sale case?

Mr. Burke: Yes, Your Honor, they were directly going out and selling their Watchtower publications, and sometimes they were receiving donations from them.

But that would fall within the definition of a sale under the Texas Sales and Use Tax Act, which is a transfer of tangible personal property for a consideration.

And under that particular case, as I said, it was a general regulatory-type situation, but it also was a tax that was being imposed upon the sale of these magazines.

They had to pay the tax in advance, and they also had to obtain a license, and this is pretty much the same structure under the Texas Sales and Use Tax Act.

The state, therefore, feels that it has asserted either rational basis or compelling state interest to sustain the exemption in this case.

Texas Monthly has also raised the fact that Section 151.312 does not or... they say it does constitute a law respecting establishment of religion.

The position of the state is that the lower court correctly determined that this exemption does not fall under that category; that it meets a three-part test in Lemon versus Kurtzman: Number one, that it has a secular legislative purpose in that it restricts the physical relationship between church and state, and this is what the Court of Appeals in Texas so determined.

It also held that its primary purpose was not to advance or inhibit religion.

To the contrary, the effect was to permit religious periodicals, religious organizations in effect to be free from state sponsorship or support.

And, thirdly, that the exemption did not foster an excessive entanglement with religion.

Unidentified Justice: Do you think the Lemon test is the exclusive test?

Mr. Burke: I think it's a test that should be applied, Your Honor, in this case.

I think it probably should not be so rigidly applied in this type of context, but I think it should be applied.

And I think the exemption meets all elements of the test because I feel that it doesn't constitute excessive entanglement with religion in the respect that it doesn't create the appearance of an ongoing partnership between church and state that, like, say, a direct aid or subsidy would, even though you might refer to an exemption as being a subsidy.

Certainly it has been held in the past that determining in the Walz case that real property being exclusively used for religious purposes didn't constitute an excessive entanglement with religion and also determined whether secular books that were to be given to students of parochial schools, there had to be a determination made there as to whether it contained religious material or whether it was secular in nature.

That was held not to constitute excessive entanglement with religion.

What the state is doing here is being mutual towards religion.

It is trying to accommodate religion by allowing for the free distribution of religious teachings and materials.

It is not advancing or inhibiting religion, it is a secular, legislative purpose, and it does not foster an excessive entanglement with religion.

In the past in that area on advancing religion, just going back to that for a minute, it has already been held that time-release programs where students that were released from public schools to go off school grounds to attend religious instruction, that this type of program did not create a symbolic union between church and state so as to constitute an advancement of religion.

I think this same sort of approach can be applied to tax case in that the voluntary sale and purchase of these types of religious periodicals likewise does not constitute excessive entanglement, does not advance religion.

It has been pointed out that under the Texas tax structure that what we have here is an exemption exempting the sales of religious periodicals based on content.

We previously said we don't feel that the whole exemption is really content-based.

It's more status-based and activity-based.

There are other exemptions, however, in the Texas Sales and Use Tax Act, one of which is an exemption that allows religious organizations and other organizations to make one-day sales in a calendar year of any items that they so desire to sell.

And I realize that is broader based than just the religious aspect.

But, there's another exemption that permits the sale of food, food products by church or the church function, and that can occur any time during the church year.

So there are other exemptions that are basically religious-based in the Texas Sales Tax Act.

The state perceives this, as I've said earlier and submits to the Court that what we have here is a nondiscriminatory tax.

If the Court, however, perceives this as a situation where there is content-based discrimination, a strict scrutiny test should be applied and the exemption should be upheld under this type of test because what we have here is two competing constitutional interests, the right to free speech by the press and the right to free speech by religion.

And to avoid any violation of the free exercise clause or the establishment clause in which we feel a compelling state interest, we submit that the exemption should be upheld.

Thank you.

Unidentified Justice: Thank you, Ms. Burke.

Mr. George, you have three minutes remaining.

REBUTTAL ARGUMENT OF ROGER JAMES GEORGE, JR. ON BEHALF OF THE APPELLANT

Roger James George Jr: Two points.

First, the Arkansas Writers' Project case involved an Arkansas general sales tax statute.

It provided a taxation of all tangible property, according to the court's opinion, in the state of Arkansas, and there were a series of exemptions, like in Texas, for mules and various things, but there was only an exemption for religious, trade, sports, and professional journals.

So, there were a lot of... or media, I suppose.

The agricultural magazines, magazines about the oil and gas industry or other things were subject to tax, along with general interest magazines.

Unidentified Justice: Well, all newspapers were exempted.

Roger James George Jr: In Arkansas they exempted newspapers.

That was a separate grounds for writ petition in that area, in the appeal in that case.

Second... and thus, this case is similar in that only the restriction is... does not include sports, professional journals and trade journals.

It just includes religion, one of the five topics that were involved in the Arkansas case.

And there the evidence was, according to this court's opinion, one to three magazines paid the tax.

In our evidence, the Comptroller's people testified that 20 to 30 paid the tax.

Given the relative size of Arkansas and Texas, I think that's a distinction without a difference in that we, in fact, have as few as 20 of the hundreds and hundreds of magazines that are circulated in Texas are subject to tax... not because of the exemptions, because of the enforcement policy.

Finally--

Unidentified Justice: Because of what?

Roger James George Jr: --Our enforcement policy argument that was part of the trial court evidence.

Finally, let me point to the question of does the taxpayer get his money back.

And, in fact, if you look at this court's opinions about taxpayers contending statutes or schemes were unconstitutional for interstate commerce reasons, a whole range of reasons.

This court's Armco versus Hardesty case and West Virginia statute taxing certain interstate sales--

Unidentified Justice: That may be somewhat different if the holding rests on an equal protection basis than it does on a commerce clause.

Because our case... some of our cases have said when it's an equal protection violation, the state can choose whether to eliminate the favored treatment or the disfavored treatment and just make sure they're all treated equal.

Roger James George Jr: --Well, I suppose the state has to... if it has a statute, it can repeal it and then solve the problem, and you can't repeal... I suppose you could repeal the... there is no equal protection in commerce clause.

Obviously you can't tax it because in commerce you can't solve it by corrective legislation.

You can solve this by corrective legislation.

But you can't solve... courts don't have powers to impose taxes.

It can't go out and make those people who distributed the Watchtower and the Baptist Standard and the Methodist Layman pay the tax because the legislature has exempted them.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. George.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Bowen v. Kendrick - Oral Argument

Wed, 13 Apr 2011 20:12:39 +0000

Case:

Bowen v. Kendrick

Media File:

87-253_19880330-argument.mp3

Related Transcript:

87-253_19880330-argument.xml

Transcript:

ORAL ARGUMENT OF CHARLES FRIED ON BEHALF OF FEDERAL APPELLANT

Chief Justice William H. Rehnquist: We'll hear argument first this morning in No. 87-253, Otis Bowen v. Chan Kendrick, 87-431, Bowen v. Kendrick, 87-462, Kendrick v. Bowen, 87-775, United Families of America v. Kendrick.

Mr. Fried, you may proceed whenever you are ready.

Mr. Fried: Thank you, Mr. Chief Justice, and may it please the Court:

In 1981 Congress passed the Adolescent and Family Life Act in response to what it considered the grave social, economic, and health consequences of early adolescent pregnancy and childbirth.

It undertook to enlist the aid of a wide variety of community groups to combat this problem in providing the assistance of federal grants for two kinds of services: prevention services, aimed at discouraging adolescent sexual relations, and care services, directed principally at pregnant adolescents, and intended to give among other things, services of the following kind: pregnancy testing, health services, prenatal and postnatal care, venereal disease screening, psychological and nutritional counseling, and a wide variety of other services.

Congress sought to draw on the widest possible range of community resources, and therefore specifically provided that among the class of grantees should be included religiously affiliated organizations where appropriate.

Though religiously affiliated organizations have participated without question throughout our history in the care and counseling services funded at all levels of government in areas such as juvenile delinquency, runaways, drug addiction, physical and mental health, foster care, adoption, and aging, the District Court struck down... on its face and as applied as violating the Establishment Clause... this Act insofar as it specifically adverted to the inclusion of religiously affiliated organizations within the class of permissable grantees.

The District Court's standard and reasoning was such that I think no one in this Court... not us and not the Plaintiffs and their Amici... defend it.

The District Court found a valid secular purpose here, and properly so, but found that the Act had the primary effect of advancing religion, thereby failing the second prong of the Lemon test, because... and I am quoting here... of its use of religious organizations for education and counselling of teenagers on matters relating to religious doctrine.

We pressed on the District Court and renew the argument here that the correct standard for determining whether a law has the effect of advancing religion has been set out many times in the decisions of this Court, and perhaps most neatly in the decision of Hunt v. McNair, where it was said that aid has the effect of advancing religion if, and I quote,

"it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subserved in the religious mission, or if it funds a specifically religious activity in an otherwise substantially secular setting."

And I suppose examples of that would be Stone v. Graham or Abington School District v. Schempp.

Instead of applying this familiar test, the District Court held that its quite original and unprecedented test should be applied, at least where, as in this act, this statute explicitly adverts to religion.

The District Court thereby was able to reach its conclusion that the Act was unconstitutional without making any of the findings of fact which would be necessitated by the established decisions of this Court, because it found that its, and I quote, "more neatly put test" allows it to strike this statute down on summary judgment on its face and on the pleadings.

This odd state of affairs explains the unusual, I believe unusual submissions of this Court on the part of the Plaintiff and their amici.

Unidentified Justice: Mr. Fried, is it possible that as applied this statute would meet the Hunt v. McNair standard that you want us to apply?

Mr. Fried: It certainly is possible.

It is certainly possible that this statute could provide for grants to religiously affiliated organizations which, nonetheless, like the religiously affiliated organizations in Hunt, in Tilton, in Roemer, nevertheless were not pervasively sectarian.

It is quite possible that the grants which are funded would be grants which, unlike the activities in Schempp or Stone v. Graham, are not specifically religious activities.

Both of those things are entirely possible, and indeed not only possible, in our view on proper fact finding it would be demonstrated they were what happened.

Unidentified Justice: Well, what do our cases tell us we should do if we think a statute might be constitutional on its face but not as applied, and if the evidence is there, to establish that?

Mr. Fried: That is it constitutionally applied.

Unidentified Justice: That it is unconstitutionally applied.

Mr. Fried: If it is unconstitutionally applied, then I think the question becomes, is it capable of being constitutionally applied?

Well, plainly, by answering the first question in the affirmative, then what must be done is that the relevant authorities must be directed to cease applying the statute in an inappropriate way.

That is what has happened with Title I--

Unidentified Justice: Is that how the Court has handled aid to parochial schools?

Mr. Fried: --I believe if you look at the most recent instances, Aguilar and Grand Rapids, Title I, here was a general program which, it turns out, a number of states were not applying in an appropriate way.

The Court so found those applications inappropriate.

And what has happened is those applications were condemned, and now Title I is still alive and well, and it is being applied differently, for instance, at this time.

Those remedial services which this Court said could not be provided within parochial schools by public school teachers coming in, are being provided on premises separate from the parochial schools to parochial school children.

Now those cases are also in litigation, but nevertheless, the Secretary believes that he is acting faithfully to the dictates of this Court.

So that, I think, is how matters have proceeded.

There are certain programs, and I think Schempp would be a perfect example, but also programs which have provided for aid to, quote, 92 per cent, 85 per cent, very large percentages of the eligible schools were so pervasively sectarian that, really, there was no room for constitutional applications, or no substantial room.

That, I think, is how the matter has proceeded in the decisions of this Court, and that is how I think it should proceed in this case.

Unidentified Justice: Were there any findings in the District Court where you would concede in this case that there were some unconstitutional applications?

Mr. Fried: In our brief we said that there were some departures, but I don't think, Justice Kennedy, it is correct to say there were any findings of any sort in the District Court.

This was on summary judgment, and what we had is a sort of comprehensive wave of the hand in the direction of some of the often quite disputed evidence.

But that, I don't think, constitutes conscientious fact finding such as Congress is entitled to before one of its statutes is struck down.

The departures to which we are referring are noted on page 41 of our brief.

We do not dispute that there may well have been departures.

Unidentified Justice: You concede that all of those departures were not just departures from the regulation, but were unconstitutional?

Mr. Fried: Well, I think--

Unidentified Justice: Because in that respect I think you diverge from the private Appellant here.

Mr. Fried: --I think that some of those departures are departures not only from what the Secretary was directing, but also departures from a fairly tight reading of some of the decisions of this Court.

It is not the easiest thing in the world to arrive at an entirely comprehensive test based on everything that this Court has said in all of these many cases, and therefore you can read the cases tightly, or you can read them in a way that is a little bit more generous.

We are proscribing a perfectly conservative reading of the decisions of this Court.

And under the conservative reading we say, these are indeed constitutionally troublesome, and we don't seek to defend them, and the Secretary did not seek to authorize them.

We don't think that is what is part of what we are here defending.

Unidentified Justice: But there have been no findings by the District Court on which to sort the ones that are constitutionally suspect and those that are not.

Mr. Fried: Plainly not.

Plainly not.

We simply don't want to overstate the state of the record, Justice White.

The record is very voluminous here, and for us to tell you that it does not contain some things which are questionable and perhaps over the line would be an impermissible exaggeration, and it's entirely unnecessary to our case to indulge in it.

Unidentified Justice: Is it available to us to make any additional factual findings that are necessary?

There were a lot of facts put in down there.

Mr. Fried: It would be most unusual; this is not an original action.

I can't imagine why it would be appropriate for this Court to make findings.

Indeed, I have considerable sympathy for the situation of the Plaintiffs in this case, because unable, I believe, to defend the judgment below on the basis of the court's more neatly put rule... that is to say, the rule which it invented... it is forced, really, to ask this Court to make the necessary factual findings which would support a judgment in their favor under the more familiar standards which this Court has set out.

I think that is what explains the fact that the Appellee's brief is so largely devoted to fact, and why they return to the facts in a document which I can only describe as their reply to our reply brief.

We cannot get into those facts, and we don't think it is appropriate for the Court to do so either.

Unidentified Justice: Mr. Fried, can I ask you one question about the procedure?

I guess there were cross motions for summary judgment, were there not?

Mr. Fried: There were.

Unidentified Justice: And I did not understand you to be arguing that the case should be sent back for trial, but rather that the record is adequate to decide the case one way or the other.

Mr. Fried: If that is your impression, we have mislead you, Justice Stevens.

Our view is that the summary judgment should be reversed.

We did not appeal from the denial of our own motion of summary judgment.

If the summary judgment is reversed, the case then will proceed in the ordinary course to fact findings and judgments and, I hope, a judgment guided--

Unidentified Justice: Is it your view, then, that some of the facts that the District Court thought were undisputed are, in fact, disputed?

Mr. Fried: --Absolutely.

Unidentified Justice: I see.

Mr. Fried: Most definitely so.

If the Court wishes, I could detail at considerable length where the court has simply acted most inappropriately in finding things undisputed which were vigorously disputed.

Unidentified Justice: That shouldn't be too hard to identify, shouldn't it?

The District Court, like most district courts, has a rule that requires, in a motion for summary judgment, that the party making it set forth those facts that that party believes to be undisputed.

Mr. Fried: Well, that was done, and we then set forth in our motion for summary judgment those facts that we thought were disputed.

Now, the District Court absolved itself from the further labors that an extensive file would have entailed by saying that we had not mentioned the matters in dispute with sufficient particularity.

It is very embarrassing to bring a matter like this to this Court, a dispute as to whether a local rule was followed or not.

In ordinary course this is a matter which a Court of Appeals would take care of rather readily.

Unfortunately, we did not have the luxury of asking a Court of Appeals to direct the District Court to perform its functions in a proper and conscientious fashion.

Unfortunately, that is a task which we cannot help but ask this Court to perform, because the direct appeal is our only recourse.

Otherwise, the statute falls.

Now, in our view the statute is plainly constitutional on its face.

As I pointed out in my answer to Justice O'Connor, there is no reason in the world why religiously affiliated organizations are necessarily pervasively sectarian.

If that were so then Roemer, Hunt, and Tilton would have been wrongly decided.

There is one particular equation which the District Court leapt to which must be corrected, and that is the notion that the activities here are specifically religious because the counselling and the care... which would be given by the religiously affiliated organizations, though for a proper secular purpose and though without any reference to religion... is for those religious persons inspired by their own religious convictions.

That, surely, is a novel and very dangerous proposition, and one which I don't think can be seriously entertained.

I suppose that the Society of Friends, when it performs services for refugees and seeks to further the cause of world peace, does so because of their religious inspiration, and yet nobody would think that assisting some of that work would violate the Establishment Clause because it could not be done in an appropriately secular way simply because those doing it are doing it with a personal religious inspiration.

If I may, I would like to reserve the balance of my time for rebuttal.

Chief Justice William H. Rehnquist: Mr. McConnell, we will hear now from you.

ORAL ARGUMENT OF MICHAEL W. McCONNELL ON BEHALF OF APPELLANT UNITED FAMILIES

Mr. McConnell: Thank you, Mr. Chief Justice, and may it please the Court:

The single most important point I wish to make this morning in my brief ten minutes is to clarify precisely what the legal question in this case is, because I agree with Solicitor General Fried that the many factual allegations are not appropriately before this Court on an appeal.

The legal question is whether otherwise qualified private organizations must be excluded from the Adolescent Family Life program solely on the basis of their religious affiliation or inspiration.

Our position is that the Establishment Clause does not require and the Free Exercise Clause does not permit religious belief or affiliation to be the basis for a civil disability.

AFLA grantees must be judged according to their conduct and their performance, and not according to their beliefs.

I would have thought that Cantwell v. Connecticut was sufficient authority to establish that proposition.

Thus the issue is not whether some grantees may have violated the terms of the grant or even whether the terms of the grant are binding on them; those are not disputed questions among any of the parties in this Court.

If the District Court had held only that grantees who use AFLA funds to teach or promote religion must be disciplined, and in appropriate cases perhaps excluded, we would not be here.

Unidentified Justice: Well, Mr. McConnell, do our cases support the view that public funds may be used to teach secular subjects in parochial schools to teenagers?

Mr. McConnell: No, Your Honor.

This Court has consistently held that programs of aid to parochial schools... which are predominantly sectarian institutions, in most of the cases before this Court over 95 per cent of them being sectarian... is not a neutral program of secular education.

The reason for that seems quite evident.

Even though the description of the program... private education... may sound neutral on its face, in fact everyone understands that the institutions involved are predominantly, almost exclusively religious.

Unidentified Justice: Does this statute, in your view, contemplate that parochial schools, for instance, could be grantees in these programs?

Mr. McConnell: I suppose so, Your Honor, so long as the class of potential grantees includes a much wider category than just parochial schools.

The problem with the parochial school cases is that the aid was targeted--

Unidentified Justice: But it would contemplate that a parochial school, for instance, could be a grantee and teach these subjects in pregnancy prevention with federal funds.

Mr. McConnell: --None of the grantees, in fact, have been parochial schools, but I am not aware of any reason why they would be excluded as one of a much broader range of potential grantees under the program.

Unidentified Justice: And it is your position that as so interpreted, it can be upheld under our precedents?

Mr. McConnell: Yes, Your Honor.

Unidentified Justice: Should the Court, on remand, determine whether any of these organizations are pervasively sectarian, or is that an improper test?

Mr. McConnell: We have no quarrel with the test of pervasively sectarian, and for this reason: under this Court's definitions... which were, frankly, ignored by the District Court... a pervasively sectarian institution is one that is simply incapable... by virtue of being so permeated with religion... of distinguishing between the teaching or promotion of religion on the one hand, and the carrying out of secular purposes on the other.

Such an institution would be unable to comply with the terms of the grant, which are legally binding in this case.

Thus the exclusion of a pervasively sectarian organization is not on the basis of its belief or affiliation, but on the basis of a conclusion about its conduct.

And that is the fundamental point which I wish to make this morning, which is that it is the conduct of the grantees and not their tie to religion or their inspiration of religion that has to be the basis for judgment.

We agree that religious organizations, like everyone else, has to comply with the terms of the grant.

There is nothing non-neutral about that, but neutrality, again, is the key.

This is a program in which Congress intended and then the Secretary has administered in a way so as not to either favor or disfavor religious organizations as such.

It seems rather clear to us that the way in which to be neutral in these matters is to insist upon objective, secular, neutral criteria for the selection of grantees, and not to either grant a grant to someone because they are religious, or to deny the grant to the same organization because they are religious.

How they are going to perform the secular functions of the program has to be the key.

That is the way in which we can see through to neutrality in a case like this.

I would like, if I could, to run briefly through how this case ought to be viewed under the Lemon test, because I think that the court below quite misunderstood the Lemon test in this context.

Now, the court did find that this program has a secular purpose, and I don't want to belabor the point, because obviously we agree with the District Court on this point.

However it is important to note Appellee's position.

While they do not directly contradict the notion that this statute is secular in purpose, their view that for the government to support an approach to sex education and care for pregnant adolescents that support sexual self-discipline as opposed to, say, contraception as a means of family planning, and that promote adoption and care as opposed to abortion, they believe that that is itself an impermissible purpose because those beliefs are also associated with the views of some prominent religions.

Now, that point of view was rejected in Maher v. Rowe, and more pointedly in Harris v. McRae, and I don't want to repeat that.

The important things is that if that is correct, it would also be true that the opposite kind of sex education program would be equally impermissible under the Constitution.

If it is impermissible for the government to fund sex education with a view to sexual self-discipline, it would be equally unconstitutional for the government to fund... as it does in the Title X program... sex education with a view toward contraception.

We do not take this position, the government does not take this position, and I cannot really believe that the Appellees support the logical conclusion of this argument about purpose.

Now, as to effect, the important thing, according to the Lemon test, is whether the program as a whole seeks to advance or infringe religion.

Here the question is does the program... taken as a whole, not concentrating just on the religious aspects, the religious grantees, but the program as a whole, does it favor religion over non-religion, or does it favor non-religion over religion.

The point is for it to be neutral, not for it be stacked in favor of secular grantees.

It infringes the rights of religious organizations to be included simply on the basis of religious affiliation, just as it would infringe the rights of non-religious organizations if religious organizations were granted a preference.

As to the issue of entanglement, here I would like to emphasize that this Court has always used the term excessive entanglement.

And this is because any interaction between government and religious organizations inevitably have some degree of entanglement.

The question is excessive in comparison to what.

In Walz v. Tax Commission, being the first case of this Court that invoked the notion of entanglement, is a good place to begin, because the Court there noted that there were problems both ways... either including religious organizations for tax exemptions or excluding them... and the question was which way leads to the least damaging constitutional consequences.

Here Appellees' position has presented us with a choice.

Either we can exclude all organizations solely on the basis of their religious affiliation, or some degree of monitoring to ensure that they are judged on the basis of their conduct is necessary.

It is our belief that it is not excessive entanglement for a program to be administered in a way so as to avoid the more serious constitutional violation of a flat out discrimination on the basis of religious affiliation or belief, which could not be a plainer violation of the Free Exercise Clause.

If Congress had passed a statute that says grants are going to be available to all voluntary and charitable organizations except for those who have religious beliefs, this Court would not have any hesitation in declaring such a statute unconstitutional, either under the Free Exercise Clause or under the equal protection component of the--

Unidentified Justice: But Mr. McConnell, is that different from a grant that says it can go to religious organizations provided the religious beliefs are of a certain kind?

Mr. McConnell: --I do believe that those are quite different situations, and it is simply not true that this program gives grants only to organizations with beliefs of a certain kind.

An organization that believes in abortion, for example, is perfectly eligible to put on an AFLA program.

It simply may not urge or facilitate abortions in the context of the program itself.

It is free to do with its own money and in its other operations whatever it cares to do.

The contrast here is with the District Court's judgment, which prevents the organization from pursuing its religious purposes even with its own funds, and in its own way, and ways that are not promoted by the AFLA grant itself.

Chief Justice William H. Rehnquist: Thank you, Mr. McConnell.

We'll hear now from you, Ms. Benshoof.

ORAL ARGUMENT OF JANET BENSHOOF ON BEHALF OF APPELLEES KENDRICK, ET AL.

Mr. Benshoof: Mr. Chief Justice, and may it please the Court:

I would first like to address the answer to Justice O'Connor's question, because I believe that the answer the Solicitor gave was dead wrong.

Her question was what do we do when we are shown some unconstitutional applications of a statute, which most certainly has happened in this case, probably more than any other case reviewed by this Court.

This is a facial challenge, and facial assessments have been the rule of this Court even when statutes have been applied for ten or twenty years, and even when trial courts have upheld them on as applied grounds, as the trial court did in Meek v. Pittenger.

In fact, out of over thirty cases heard by this Court since 1947, only one was labeled a narrow, as applied holding, and that was Hunt v. McNair.

Justice Powell said, I am only calling it as applied in this case because the South Carolina legislature hasn't worked out the details of the statute yet.

Nevertheless, despite the fact that the Court has always looked at the facial assessments, it's done so because the standard in Establishment Clause cases is different than in other kinds of constitutional cases.

You can look at the language of the First Amendment to see that difference.

The language says laws respecting an establishment of religion, and therefore this Court has always looked for the certainty that it will not so advance religion, or the risk and potential in a statute.

Unidentified Justice: So you say, Ms. Benshoof, that one would judge this statute after ten years of operation just the same way you would judge it on the day it was enacted?

Mr. Benshoof: I think after ten years of operation you would have stronger proof that it is certain to do so.

In fact, only last term in--

Unidentified Justice: You say you would, then, judge it the same way after ten years of operation as you would on the day it was enacted?

Mr. Benshoof: --Yes.

You might have stronger proof after ten years.

In Houston v. Hill last term, this Court struck down a statute on its face, and the same issue came up that is before the questions today... the questions to the Solicitor.

And that was, what do we do with the evidence of the actual application when we are looking at a facial statute.

This Court specifically said the Court of Appeals was right in that case in looking at whether the statute was overbroad.

In looking at the evidence in concluding that how the statute had been enforced demonstrated a significant potential for the unconstitutional application of the statute.

Unidentified Justice: But you can't look at that evidence to demonstrate that it doesn't have a significant unconstitutional application.

Mr. Benshoof: That's right.

Unidentified Justice: Sort of a one way look at subsequent practice: it can hurt you but it can't help you.

Mr. Benshoof: That's right.

In the Establishment Clause area, it is a one way look for a very particular reason.

As this Court pointed out in Aguilar v. Felton, there are a lot of factors that would hide the risk or potential.

For example, who is going to bring up the unconstitutional applications when a program is in being, the parochial school children, the parents, the people who are getting the money?

Unidentified Justice: It seems to me if we can look to the practice and the application of it in order to determine that it is unconstitutional, we ought to be able to look to them to determine that it is constitutional as well.

I don't see any basis for looking at only the evidence on one side.

Mr. Benshoof: Well, the basis was described by this Court in your majority opinions both in Grand Rapids and in Aguilar, where you said the fact that there had been no proof in 18 years of unconstitutional application, that didn't mean that there wasn't a high risk, and that there were certain factors mitigating against those kinds of unconstitutional applications being brought to the forefront.

I would also like to address the question about the fact finding, because I think some misstatements were made to this Court.

In the District Court there were cross motions for summary judgment.

The government never argued that there were any disputed facts.

The Plaintiff submitted 1,251 undisputed material facts backed up by a plethora of deposition evidence taken around the country.

Sixty per cent of these were written, admitted, by the government, right on the face, and only 29 of those facts did the government dispute and put in any kind of evidence, and those were not found legally relevant by the District Court.

So this is not a question where there are disputed facts.

And Rule 52 makes it very clear that in cross motions for summary judgment it is not up to the trial court to decide disputed facts and make findings of fact.

In fact, that is an improper role.

Nevertheless, that doesn't make our whole list of undisputed facts irrelevant to this Court.

They are there in the record.

The District Court judge said he found that they were properly put in the record, they were backed up by evidence, and they are sitting in the record for whatever relevance they may be.

They are certainly cumulative.

Unidentified Justice: May I ask, because your brief has a good deal of factual material in it that the District Court did not refer to, do you refer to any of those 29 disputed facts, or do you rest entirely on the undisputed?

Mr. Benshoof: We rest entirely on the undisputed facts.

We could have rested on 20 per cent of the facts that we put in.

I mean, we showed such unconstitutional--

Unidentified Justice: But what you are telling me... just to make sure... is that what you described as factual in your brief is within the limits of those that the District Court regarded as undisputed?

Mr. Benshoof: --Absolutely.

The District Court regarded 1,215 facts as undisputed, and I don't think we put in a quarter of those in our brief.

Unidentified Justice: Ms. Benshoof, do you think that the statute would survive, in your view, if there were additional statutory or administrative proscriptions against the misuse of government for non-secular purposes?

Mr. Benshoof: No, I don't think so for three reasons.

First of all, this is a unique demonstration project by Congress.

They wanted to try something new, and they said there are certain limitations of the government in dealing with moral issues, let's try something new.

And it calls for religious participation explicitly in four places.

Now, we argue that the statutory language requires all applicants to involve religions, even if you are secular.

And although this is--

Unidentified Justice: It says, as appropriate.

Mr. Benshoof: --Yes, although this is disputed by the government, the District Court, HHS, grant applicants themselves, and the 1984 Senate committee all agreed with our interpretation.

However, our argument on the constitutionality of the statute doesn't hinge on whether it is mandatory or optional.

It is absolutely clear that religious organizations are eligible for grants, and they are listed as desirable participants.

Unidentified Justice: As appropriate.

Mr. Benshoof: Well, we agree it is as appropriate in the delivery of their services, not whether or not they want to have them.

We think it is whether or not where they want to put them in, and every applicant we investigated, secular or religious, had it in there, and we put that evidence before the Court.

And in fact, if you look back at the 1981 legislative history, they said, what is a model program?

And a model program was one where public school children would be released from school to go to churches to receive federally funded sex education.

That was the kind of model program Congress envisioned.

As you see, there was certainly a joint endorsement between religion and churches that Congress envisioned.

Unidentified Justice: Ms. Benshoof, let me ask you this: you don't contest, I don't think, that Congress can lawfully adopt, as a purpose, encouraging and inculcating in the young sexual self-restraint?

That is not your--

Mr. Benshoof: Absolutely not.

Of course they could adopt self-restraint.

They just can't do it by ways of... for example, one grantee teaching young girls to pretend that Jesus is their date.

Unidentified Justice: --Now, let me put the worst case scenario to you that was suggested by Justice O'Connor.

Suppose the government explicitly decided to do this by funding programs in the schools?

Do you think the Constitution requires that the government can fund such programs in all public schools, but cannot fund them in any sectarian schools?

The same programs inculcating sexual restraint.

Mr. Benshoof: When we are talking about teaching itself, this Court has always said that the entanglement problems... even if you had a statute that separated the sectarian from the secular, which this statute doesn't... are too much, particularly with these kinds of religiously sensitive values.

I would like to point out that the government admitted below all of our expert affidavits from religious theologians saying that these values could be secular.

When you put the values of chastity, intercourse, masturbation, marriage into the hands of religious authority, it is going to be very hard, and I think we proved impossible, for religious organizations to teach them in a secular way.

Unidentified Justice: You can have other organizations who have the opposite values that can teach those values, even if the people that are teaching them are religiously motivated.

That is, if they say, well, use contraception, or use birth control, or use abortion, that's all right.

Mr. Benshoof: Obviously, our public schools teach a lot of values; we all know that.

We also feel that there is a lot of interplay in the public school situation that leads to democratic pluralism: different school boards, public libraries, no dictates on the care.

That is a good example, because I think if the public schools want to teach, for example, AIDS education, and abstinence would be a major factor in that, but if they would give that to religious authorities, and religious authorities would not mention condoms or, as some of our programs do, say such things as condoms cause birth defects, in order to discourage teenagers from learning about condoms, that that would certainly would be a religious rule that prevented secular teaching on abstinence.

We are not saying that chastity cannot be a secular value.

It certainly can be, and there are very good secular reasons to teach it.

But in the hands of religious authority there is not just a possibility that it might be misused, we have certainly proven that it has been misused.

Unidentified Justice: Is the Covenant House a religious authority?

That is the institute that takes care of 15,000 homeless a year in about six major cities.

Mr. Benshoof: We did extensive discovery on the 1981 and the 1982 grantees.

The Covenant House was not one of our grantees.

Whether or not that--

Unidentified Justice: Well, as you know they are founded by the Franciscans, but they are open to all people, and the District Court's rationale, as I understood it from page 34 of the record, was that this is a religious organization that may not give this kind of program.

Mr. Benshoof: --The District Court said that you should use a functional definition of a religious organization.

Whether the YMCA and Harvard University are still religious--

Unidentified Justice: What about the Covenant House?

They filed an amicus brief here.

Are they a religious organization, in your view?

Mr. Benshoof: --They might have filed a... I don't know.

The District Court judge... they were not in his opinion because they were not a grantee at the time.

There is no discovery--

Unidentified Justice: They are founded by the Franciscans, and suppose they are supervised by Franciscan fathers.

Mr. Benshoof: --If they have religious dictates on the kind of care funded under this, if they counsel teenage girls, but they will not give information that even the statute allows you to give because of religious reasons, if there is a religious override on their secular care, and they do educational programs that are governed by religious dictates, yes, they are.

But that is no before the Court today.

Unidentified Justice: Can they do drug counselling?

Mr. Benshoof: That would depend what statute they are doing the drug counselling under, whether the secular and the sectarian are separate--

Unidentified Justice: Suppose it is simply a statute that is designed to discourage drug use and encourage abstinence and avoidance of drugs.

Mr. Benshoof: --If they have religious guidelines on how they discourage drug use, such as tell people, as one grantee did in this program, that using drugs means the devil is wasting your body, that Satan will strike you down, most certainly they could not.

Unidentified Justice: Do you agree with the District Court when it said that to presume that counsellors from religious organizations can put their beliefs aside when counselling an adolescent on matters that are a part of religious doctrine is simply unrealistic?

Mr. Benshoof: Absolutely, because every religious organization that got funding when we did discovery was operating under religious dictates whether they were religious themselves or not.

For example, in St. Margaret's Hospital, all the employees of this program had to sign a statement that they would follow religious dictates.

One midwife who was counselling teenage girls, for example, who asked her, may I have sex during pregnancy, she thought that was a medical question and she said yes.

She was chastised and almost lost her job because she was told that she was supposed to give a religious answer to the medical question.

So certainly, funding most hospitals would be absolutely constitutional, but if you funded a hospital run by the Jehovah's Witnesses to counsel for a hemophiliac ward, in which they would counsel against blood transfusions and not offer them... not send them elsewhere, that would raise some very serious Establishment Clause questions.

Unidentified Justice: What if the chief executive officer of a sectarian hospital was personally very religiously motivated?

Would that prevent him from playing any part in the administration of a grant that the hospital got?

Mr. Benshoof: Absolutely not.

We are not talking about the personal beliefs of people.

Obviously, public school teachers may be very religious.

Unidentified Justice: But only people have beliefs in the long run.

I mean, buildings don't have beliefs, organizations without people don't have beliefs.

Mr. Benshoof: But people operate under religious dictates that they may or may not believe in.

The evidence of this case shows that many of the employees in these programs did not operate under the beliefs that they were forced to force on teenage girls, who didn't share those beliefs either.

Unidentified Justice: That could be the imposed belief of the director as well as the imposed belief of the institution.

I mean, you are just referring to the fact that there are superiors and inferiors in any organization.

What the Chief Justice is asking is why does the fact that the superiority is an institutional superiority rather than just a personal superiority, which everything boils down to... why should that be crucial?

Mr. Benshoof: It depends whether or not that affects the degree of the religious delivery of services or not.

Obviously, there could be many secular universities that are run by very religious people, but that doesn't affect their eligibility for federal aid, and we are not claiming that it would.

Unidentified Justice: If the religious belief affects the ability of the organization to implement the program properly, now, that certainly is a different question, as in your drug testing example.

But you are not limiting it to that.

You are saying that even if the religious belief does not at all impede the good counselling under the program, simply because one person is counselling out of religious conviction and another person is counselling the same thing not out of religious conviction, that makes the difference.

Mr. Benshoof: No, you misconstrue my answer.

Obviously, there is going to be religious counselling whether you fund a drug program for just secular grantees or sectarian grantees.

But when you are funding a religiously affiliated organization to do teaching and counselling, and they happen to have religious mandates on that very same issue, that's the kind of danger that raises the risk or potential or advancing religion which the Establishment Clause prohibits.

But I think another things is very important to consider in the answer to that question, and that is that we are dealing with a statute... your questions all rest on some hypothetical statute that's not before the Court.

If you look at the congressional history, they wanted a union between government and religion, it calls for religious participation, and it has nothing in the statute that precludes the teaching or advancing of religion.

Now, this is all the more telling in the fact that there are 25 other prohibitions and limitations on grantees in the statute.

I don't know of any other federal statute that funds educational institutions, both sectarian and secular, that doesn't have even one statutory guarantee.

In fact, the Solicitor was mentioning about Title I, which Aguilar was not an as applied case, because this Court didn't even take it under 1252 jurisdiction, it was only a challenge to the program in New York.

Title I on its face was never challenged in Aguilar.

But Title I itself, in which only four per cent of $4 billion went to sectarian organizations, had on its face of the statute four statutory guarantees trying to see that when we fund an educational program, that taxpayers money doesn't go to fund a sectarian enterprise.

Unidentified Justice: I think there is an administrative prohibition of use for religious purposes, isn't there?

Mr. Benshoof: Absolutely, and that is deficient for four reasons.

Unidentified Justice: Well, does that fact that it is administrative rather than statutory affect your judgment of the program?

Mr. Benshoof: Yes, it does, and I think it has affected this Court's judgment in the past.

For example, in Tilton v. Richardson there was a prohibition that eight members of this Court struck out that said after 20 years we are going to take out keeping the secular from the sectarian, and you struck out that provision and said it had to be in the statute.

If it could just be an administrative regulation, or if it was constitutionally required so that you could just read it in, it wouldn't have been necessary to strike that down.

Similarly, in another college aid case, Roemer, in footnote 23 this Court cited approvingly the fact that the Maryland statute had been amended to put the statutory prohibitions in the statute and not in the regulation.

Unidentified Justice: Do you think the Court meant that the case would have come out differently had the statute not been amended?

Mr. Benshoof: Yes, and in fact, Justice White, when he wrote the opinion in Regan upholding a New York statute that gave parochial schools reimbursement for state mandated tests, that case took care of a problem that this Court had struck down in Levitt where there were no statutory guarantees, and Justice White made it quite clear that if those kinds of guarantees were not in the face of the statute, the outcome of the case would have been different.

Unidentified Justice: Did the opinion there say that had they only been administrative and not statutory, the result would have been different?

Mr. Benshoof: No, they didn't, but I would like to point out that this isn't even really administrative.

That this is not a regulation, it's not a guideline, it's not in the statute, and yet 25 other things are in the statute.

All it is is a grant condition that was put in after we filed the lawsuit and after we wrote a brief saying that this was necessary, then the government put it in, and it has never enforced it.

In fact, in the motion for summary judgment by the government, they put 726 facts before the District Court, and only four of them had anything to do with monitoring a statutory condition.

Unidentified Justice: Ms. Benshoof, in the First Amendment area we have certainly upheld legislative schemes that do not contain in the statutes sufficient standards to guide the administrator's discretion.

Where those standards are supplied by a regulation... a law that doesn't say that the mayor has to make his determination on such and such a basis, but there is a regulation that sets forth clear statutory standards, we have allowed that to satisfy the First Amendment Free Speech Clause, why wouldn't it satisfy the Establishment Clause of the First Amendment?

Mr. Benshoof: You have never upheld that in the Establishment Clause area, and I believe it is because of the very--

Unidentified Justice: We have never had occasion to address it in the Establishment Clause area--

Mr. Benshoof: --Well, in a sense you have, because in cases such as Levitt when it wasn't clear that the state mandated test would... when you gave the money to the parochial school, it would only be used for that.

You could have inferred that in or remanded it for a regulation, but instead you made the New York state legislature decide it, it came back, and then you upheld it in the Regan decision.

So you have had chances to infer it in and have never inferred in regulations or given that discretion.

I think that is because of the words of the First Amendment Establishment Clause itself, and because your standard has always been, we must have certainty that there is no risk or potential.

Unidentified Justice: --We are not talking here about inferring a regulation; we are not talking about speculating that a regulation could be adopted; we have one, and in those other cases we didn't have any.

Mr. Benshoof: Well, the problem with dwelling on the fact... I think the importance of the fact of the administrative regulation for this case is not that it would constitutionalize anything, but its importance is to show how inadequate it has been.

In fact, although it says you shall not teach or promote or religion, they never once defunded or not funded an organization because of that.

When St. Margaret's Hospital taught Catholic doctrine in parochial schools for a year and a half... and we caught them at that during the deposition... all that happened was that HHS wrote them a letter and said that your teaching Catholic doctrine on religion is susceptible under the Establishment Clause of advancing religion, take out the words Catholic and you can use the curriculum in the public schools, and then they got a total of $2 million, almost, in aid.

Secondly, the Solicitor seems to feel that pervasively sectarian is a major problem as to what the institutions are, and yet not once in seven, not once did HHS ever question the religiosity of any institution receiving aid under the statute.

In fact, Brigham Young University, they submitted 26 facts on showing what they were going to do with their $2 million, but not one fact on whether or not that institution was so pervasively sectarian it shouldn't get any aid at all.

And not only that, they admitted all of Plaintiff's evidence on how Brigham Young University lowered tuition for students who were Mormons, required Mormon classes for everybody who went there--

Unidentified Justice: Ms. Benshoof, the government suggests that you do not really defend the standard that the District Court used, is that right?

Mr. Benshoof: --That is absolutely incorrect.

The District Court--

Unidentified Justice: What standard do you think the District Court applied here?

Mr. Benshoof: --The District Court said that this statute violated the primary effects doctrine in five ways, and it violated the entanglement doctrine in two ways.

The five ways, it said, was that, first of all, because on the face of the statute it calls forward for religious participation and encouragement giving religious applicants an edge.

From the face of the statute there is a direct and immediate effect.

It said there is an endorsement which again should invalidate it under primary effects.

It said that there is no statutory guarantees on the face of the statute keeping the sectarian from the secular, and that is another way it violates the primary effect.

It says because the nature of the aid is so close to religious doctrine, that is, teaching chastity... premarital chastity, that is... and marriage, masturbation, abortion, because that is so close to religious doctrine that's another reason.

Unidentified Justice: Suppose none of the grants had ever been to religiously affiliated organizations that were pervasively religious.

The District Court would still have struck the statute down, wouldn't it?

Mr. Benshoof: Yes, because the pervasively sectarian doctrine developed by this Court in the college aid case is certainly not the heart of the Establishment Clause jurisprudence, it is only a shorthand way to know it you should go ahead and look at other factors.

I mean, the other factors are what is the nature of the aid and what is the relationship between the government and the program that is being created here.

And certainly, inspecting curriculums on chastity and sexuality is much more of an invasive relationship than in Tilton, where you had to just audit to see if they used a construction grant.

Unidentified Justice: So your submission here is that it just doesn't make any difference whether these religiously affiliated organizations were pervasively religious or not?

Mr. Benshoof: It doesn't make a difference, but I think that the government has also used a wrong definition.

I think when you look at whether or not an institution is pervasively sectarian, you have to look at a functional definition.

You know, what does it mean in the context of this program.

Obviously, in 1899, when this Court upheld funding Bradford Hospital for a diphtheria ward, nobody would really have said that is a pervasively sectarian hospital.

But when there are religious dictates on what they can say and do on these particular items funded under this act, reproductive health care and sex education, when you look at those dictates on this portion of the hospital program, then the pervasively sectarian certainly takes on a different tenor.

I would just like to point out that the Senate committee report stated that Congress' reason for doing this was that religion doesn't suffer some of the limitations of government in dealing with the problem that has such complex moral dimensions.

In other words, religion can help us shape the morals of citizens.

Well, this was precisely the reason in 1784 that Patrick Henry wanted to tax Christian teachers.

He said we should pay the salary because the diffusion of Christian knowledge has a tendency to correct the morals of men in this country.

Now, this proposal, of course, was soundly rebutted in Madison's memorial and remonstrance.

Twenty-five years ago in Abington v. Schempp, this Court equally rejected the rationale of the state of Pennsylvania that said that Bible reading would serve that same secular purpose, that Bible reading would promote moral values of citizens and contradict the materialistic trends of our times.

For over 200 years this country has ensured religious liberty, protected religious pluralism, and minimized political divisiveness... and this is a very competitive program... by rigorously enforcing the First Amendment.

By finding the Adolescent and Family Life Act unconstitutional, this Court furthers the original intent of the framers, that religious instruction and indoctrination are not within the scope of Congress' power to tax and spend for the general welfare.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Ms. Benshoof.

General Fried, you have three minutes remaining.

ORAL ARGUMENT BY CHARLES FRIED ON BEHALF OF FEDERAL APPELLANT -- REBUTTAL

Mr. Fried: I would like to just briefly indicate that the joint appendix, Justice Kennedy, has an affidavit from Father Bruce Ritter, who is the president of Covenant House and an AFLA grantee, setting out the programs, and that was available to the District Court on the summary judgment motions.

I think the heart of the difference between Ms. Benshoof and ourselves came out pretty clearly.

I think the Plaintiffs are distressed at the abortion and family planning limitations in this act.

That is what troubles them.

They do not accept the judgment of this Court in Maher and Harris.

That is the heart of the difficulty, because from that premise, which is, of course, an inadmissable one, they conclude that any organization, if religiously affiliated, while it might otherwise not become pervasively sectarian, it becomes pervasively sectarian if that religious organization has doctrinal limitations which coincide with the limitations which Congress put into this act.

Therefore, a hospital becomes pervasively sectarian in the mind of the Plaintiffs because it has doctrinal limitations on abortion and family planning methods, which coincide with limitations which this Court had said Congress may put on the provisions of those very same services by any federal grantee.

Now--

Unidentified Justice: In fairness, General Fried, I think it is more than that.

I think that they would say not just the limitations but even the affirmative goals of the program, if those goals are pursued for religious reasons, that that would be disqualifying.

In other words, it's quite all right to say you should not have premarital sex, but it is not all right to say you should not have premarital sex because it is a sin.

Mr. Fried: --It is not all right with federal money to say you may not have premarital sex because it is a sin.

I agree with that.

Chief Justice William H. Rehnquist: Thank you, General Fried, the case is submitted.

Attribution:

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Corporation Of Presiding Bishop v. Amos - Oral Argument

Fri, 09 Jan 2009 14:48:26 +0000

Case:

Corporation of Presiding Bishop v. Amos

Media File:

86-179_19870331-argument.mp3

Related Transcript:

1986_86_179_argument.xml

Transcript:

Argument of Rex E. Lee

Chief Justice Rehnquist: We will hear arguments this morning in No. 86-179, Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints against Christine J. Amos; and in No. 86-401, United States against Christine J. Amos.

You may begin whenever you're ready, Mr. Lee.

Mr. Lee: Thank you, Mr. Chief Justice, and may it please the Court:

This case involves the constitutionality of Congress' 1972 Amendment to Section 702 of Title VII.

It is an amendment which restored to religious employers a right that they had enjoyed for 175 years before there was a Title VII: the right to prefer their own members for their own employment without running afoul of Title VII's prohibition against employment discrimination based on religion.

When originally enacted in 1964, Section 702 permitted religious preference hiring, but restricted it to the church's religious activities.

The undisputed purpose of the 1972 amendment was to free the courts and the EEOC from entangling themselves in deciding which of a church's activities are and which are not sufficiently religious to qualify for the exemption.

Section 702 has none of the traditional indicia of an establishment of religion.

It involves no endorsement, no subsidy, no preference for one sect over another.

The statute simply does not promote religion.

All that it does is to permit churches to promote religion in the same way that they have done for all but eight years of our national existence.

There is nothing in the establishment clause that prohibits churches from promoting religion.

Indeed, that is the very reason for their existence.

And neither does the establishment clause prohibit government from permitting churches to promote religion.

Neither the Appellees nor the District Court has ever really faced up to the nature of the problem that Congress faced, and the limited range of available solutions to Congress, given the other decisions that Congress made.

Congress could have simply made Title VII applicable only to race, sex and national origin.

But once it decided to include religion as one of its criteria, it had to provide some kind of exemption from that criterion for religious employers, lest, in violation of the free exercise clause, they be prevented from hiring their own members for purely ecclesiastical positions.

Once it is recognized then, as I gather it is by everyone in this courtroom, that the Constitution required Congress to pick some exemption, the only real issue is whether the Constitution precluded the choice that Congress made.

In other words, Congress having opted for an anti-employment discrimination package that is not quite as large as the one the Appellees would have chosen, is Congress constitutionally obligated to make it larger?

The answer to that question has to be no.

Surely the establishment clause is not violated every time government regulates churches to a lesser degree than it might have, or every time that it lifts a governmental burden that would otherwise be imposed.

That means that the real objection to this statute finds its roots not in constitutional law, but in public policy.

It boils down to the fact that the Appellees wish that Congress had gone further and prohibited more than Congress chose to prohibit.

The only serious--

Unknown Speaker: Mr. Lee, if I may inquire about one matter.

I guess this case involves nonprofit entities operated by the LDS Church?

Mr. Lee: --That is correct.

Unknown Speaker: Now, what about the application of the statute to profit-making businesses of churches?

Do you think that there is a legitimate secular reason for the government to allow religious entities to operate profit-making businesses and be exempted from Title VII?

Mr. Lee: I do, Justice O'Connor, for this reason.

I stress that it is not this case, as you indicated.

The first reason that I give that answer is that as is stressed by most of the amicus briefs that have been filed in this case, the distinction between what is secular and what is sectarian is a very difficult one to draw.

And, indeed, that intrudes.

And that's why Congress drew the line where it did.

And as a consequence, we think that at any point along the employment spectrum, you're going to have some line-drawing problems.

Therefore, the best place to draw the line is the place where Congress drew it.

Moreover, this Court has said many times... beginning at least as early as Walz versus the Tax Commission... that Congress does have a certain degree of line-drawing capacity in this area; that there is a channel between what the establishment clause prohibits on the one hand and the free exercise requires on the other, and that within that channel Congress may safely legislate.

If that means anything at all, we think it gives Congress the right to draw the kind of distinction that it drew in this case.

Unknown Speaker: Well, I think it's a much more difficult choice, if applied to a profit-making business.

Mr. Lee: There is no question; there is no question that it is a more difficult choice.

But two points: One, I think that at the end of the day you're going to be better off observing the dividing line that Congress drew and giving that deference that the Court has said since Walz that we give to Congress in the area.

But, in any event, it does not apply to this case.

So the only serious First Amendment issue in this case is presented not by what Congress did in 1972, but by the District Court's own test, which by its terms requires federal courts to decide what a church really believes and whether its practices are true to its beliefs.

The Court's opinion, for example, quotes the Book of Mormon, the Doctrine Covenants, a theological treatise entitled "Mormon Doctrine", and then draws its own conclusions as to what the church's tenets really are and whether there is an adequate fit between what the church believes and what it does.

We submit that the First Amendment reserves those kinds of issues: what are a church's beliefs, and are its practices the best way to achieve them to the churches themselves.

But the Court need not reach that issue, because if the principle that has been so often stated that there is some room between the floor and the ceiling, between the free exercise and the establishment clause, then it must mean at a very minimum that Congress can constitutionally choose between two exemptions where those were its only options, where either one is going to have a differential effect on religion.

But the one that Congress chooses is the one that does not put the courts and the EEOC into the business of deciding what are religious beliefs and how they can best be achieved.

Finally, the Appellees have never really faced up to the fact that this is not a religious benefit case.

This is not a case in which Congress, starting from ground zero, gave to religious organizations something that they would not have had absent any action by Congress at all.

It is a religious exemption case, and the religious exemption cases make very clear that the rule has to be different for those cases.

The Appellees and the District Court's position is very simple.

It is that the statute is unconstitutional because its effect is to give religious employers something that non-religious employers do not enjoy and that it, therefore, fails the effects prong of Lemon.

But if that's the rule, then it's hard to see how any religious exemption can ever survive, because by their very definition, religious exemptions always affect religious groups and always affect them differently than other groups.

If that were enough to invalidate it, then Walz and Gillette would have to be overruled; Bob Jones would have been decided differently.

And in United States versus Lee, the Amish social security exemption case, Congress could not constitutionally have exempted the Amish from social security taxes, even if it had wanted to; and the exemption that it did give, which is an exemption that is still on the books to self-employed Amish, is unconstitutional.

The analysis is really no different, if it is expressed in terms of the traditional Lemon test, because if you assume the applicability of Lemon, then the analysis is basically the same.

You look first to see whether there was a proper purpose, and the District Court held that there was.

But Lemon's second prong inquires into primary effect.

In an exemption case, in determining primaryness, you have to consider not just the effect if Congress had done... if Congress acted, but you have to make a comparison between the effect of Congress doing nothing and Congress doing what it did.

The Appellees' case could not survive a comparative analysis, as even they appear to concede on page 22 of their brief.

They have not attempted to make it, and under those circumstances, this statute clearly survives.

Mr. Chief Justice, unless the Court has questions, I'd like to reserve the rest of my time.

Argument of William Bradford Reynolds

Chief Justice Rehnquist: Thank you, Mr. Lee.

We'll hear now from you, Mr. Reynolds.

Mr. Reynolds: Mr. Chief Justice, may it please the Court:

This is, it seems to me, a case that brings to the Court a First Amendment religious clause challenge to legislative action in perhaps its cleanest and simplest form.

Congress has barred religious discrimination in employment decisions under Title VII, but in so doing it has elected in Section 702 to exempt from that prohibition religious organizations, associations, institutions and corporations.

Rather than imposing certain obligations on employers in order to accommodate a particular religious view which was the case with the Connecticut statutes struck down in Thornton and Caldor, what Congress here has done is imposed no obligation on religious employers in the interest of religious accommodation.

In essence, it has adopted a hands-off policy with regard to religious-based employment decisions of religious organizations.

As stated, and indeed the uniformly recognized purpose for leaving religious institutions alone, was Congress' desire to avoid governmental control over and entanglement with the affairs and activities of religious organizations.

As the court below correctly found, this satisfies the secular purpose requirement of Walz and Gillette and the like cases of this Court.

Section 702 exemption removes the prospect of intrusive and likely constitutionally-offensive inquiry, investigation and probing by government into the religious or the secular nature of church-related activities.

On another level, the exemption eliminates the prospect of secular control over and entanglement with the church's ability to fulfill its religious mission.

There is thus no tension here between the religious accommodation requirement that's incorporated in the free exercise clause and the establishment clause's prohibition against state endorsement or advancement of religion.

Rather, Congress' hands-off approach brings the values of both the free exercise clause and the establishment clause into perfect harmony.

The exemption from an intrusive government regulation furthers the free exercise interest by preserving the liberty of religious organizations to create and exert authority over self-defining religious communities, and for much the same reason, it furthers the establishment clause's interest in avoiding undue secular control and entanglement.

It cannot be, as Appellants argue, that disharmonization fails in First Amendment terms, because Congress' accommodation of religion is broader in this instance than might be required or compelled by the free exercise clause.

Any narrower exemption, whether defined along the lines suggested by the court below or in some other fashion, would of necessity bring into play the kind of line drawing on secular terms that would exacerbate the very tension between the two religious clauses that Congress effectively avoided in Section 702.

Indeed, it's precisely for this reason that this Court in Walz and other decisions has acknowledged that there is considerable room between the floor set by the free exercise clause and the ceiling that's erected by the establishment clause in which legislatures may chart their own course of benevolent neutrality.

That Congress safely navigated a neutral course in Section 702 is quite clear.

The exemption applies to all religions even handedly, not to a particular sect or to select religions.

It involves no endorsement of, financial support for, or active involvement in religious affairs by government.

In this regard, the wall between church and state has not been breached.

Religion is neither enhanced nor inhibited by the Section 702 exemption.

Now, Appellees have argued that the statute effectively grants religious employers a benefit, that is, to discriminate on account of religion, which is unavailable to non-religious employers but this is the inevitable consequence of a hands-off policy by the Governemnt in First Amendment matters.

It allows religious institutions to advance their own religious mission on their own terms and through their own membership.

To the extent such autonomy is regarded as a beneficial effect of religious exemption, it is precisely the sort of benefit that is protected, not condemned, by the religious liberty interest in the Free Exercise clause.

Nor is there any reason to fault the exemption because it might well open the door to uneven treatment of employees, either as between or among various religions or as between religious organizations and those that are not religious.

Whatever the particular employment decisions and the religious reasons on which they are based are from one religion to another.

That is not State action that determines different individual treatment but unregulated private action by religious groups of the sort constitutionally protected by the Free Exercise clause.

Here, Congress acted to preserve the autonomy of religious institutions to manage their own affairs with respect to matters of religious employment.

In fashioning a broad exemption, Congress emphatically removed from the judicial agenda precisely this sort of intrusive secular probing of the operations, activities and beliefs of religious institutions that preoccupied the Court below.

Unknown Speaker: Mr. Reynolds, as I understand your argument, it would support a total exemption from Title 7, not just from the religious prohibition; would it not?

Exempt it from the racial discrimination and all other kinds of discrimination?

That kind of an exemption would have all of the benefits you describe here?

I just wondered if you really intended the argument to carry that far?

Of course, it isn't presented.

Mr. Reynolds: I think that would certainly implicate different considerations.

Congress here made the determination that the compelling interest in the furtherance of race discrimination and sex discrimination under the statute were such as to warrant the intrusion that would be necessary in order to apply to religious organizations.

Unknown Speaker: I understand that but what I'm saying is, as I understand the argument you're making, Congress could have granted religious organizations a complete exemption from Title 7's other prohibitions and accomplished all the purposes you are describing now--

Mr. Reynolds: Congress could have done that.

Unknown Speaker: --And therefore, it would have been a perfectly permissible exemption.

Mr. Reynolds: Under the First Amendment.

Unknown Speaker: Under the reasoning that you advanced.

Mr. Reynolds: Right, under the religious clauses.

I think that the legislative judgment that Congress made is one that comfortably safeguards the non-interference interests implicated in the establishment clause, while fully serving the religious liberty interests of religious institutions that are protected by the Free Exercise clause.

Perhaps it is a case that Congress could have drawn the exemption line elsewhere, indeed even in a manner that produced more secular entanglement and intrusion by the Courts but nothing suggests that it must do so and whereas here Congress believes that religious freedom concerns outweigh its own interests in imposing the regulations at issue, it should, be free to strike the balance in favor of religious freedom.

Far from raising any First Amendment problems, such enlightened self-restraint serves to further the religious pluralism and peaceful coexistence between church and state that lies at the heart of the religion clauses.

Accordingly, Section 702, Religious Exemption in Title 7 of the Civil Rights Act of '64, suffers no constitutional infirmity, in our view, and the United States, therefore, urges reversal of the District Court's judgment.

Mr. Chief Justice, there are no questions.

Argument of David B. Watkiss

Chief Justice Rehnquist: Thank you, Mr. Reynolds.

We will hear now from you, Mr. Watkiss.

Mr. Watkiss: Mr. Chief Justice, and may it please the Court.

After sixteen (16) years of good and loyal service as a building maintenance engineer in a public gymnasium, Frank Mason was fired solely because he failed to satisfy his employer's newly imposed and inconsistenly applied religious condition.

Unknown Speaker: This is the first time the facts have been mentioned.

Mr. Watkiss: It's quite true, the Government and the Church want nothing to do with the facts, Justice Blackmun.

In essence what Mr. Lee's clients tried to do was to advance their religious interests through the use of the economic coercion an employer enjoys over an employee, to coerce Mr. Mason's religious beliefs and practices.

Unknown Speaker: That would have been perfectly okay until what year?

Mr. Watkiss: That would have been perfectly okay... well, it would have been lawful under Federal law until 1964 and, Justice Scalia, what we did in 1964, what the Civil Rights Act of 1964 represents is a repudiation of a lot of the past.

Unknown Speaker: Do you say that once Congress has enacted a law such as the Civil Rights Act of 1964, it can never retreat?

Is it kind of a ratchet?

Mr. Watkiss: I don't make that broad a statement, Mr. Chief Justice.

I think it can retreat in some areas.

What we're dealing with here is, we're dealing with the religion clauses and those religion clauses impose certain unique restrictions, particularly on the power of Congress.

So, whether or not Congress could tomorrow abolish Title 7 in its entirety is not the question before this Court.

Unknown Speaker: It wasn't Congress that fired this man; was it?

Mr. Watkiss: That, essentially, is the Government's argument.

It says, "We didn't fire Mason".

, so there are no cognizable effects under the establishment clause, as I understand Mr. Reynolds' argument.

That just won't work, Justice Scalia.

There are plenty of effects.

There's lots of benefits that flow from being exempted and there's lots of burdens that are visited on third parties and the sad thing about the Government's and the Church's view of this case is, they do not once tell you about the cost that this exemption visits on the religious liberty of third parties, of people like Mr. Mason.

They want to talk about economy and hands-off.

They refuse to concede that the central value protected by both the Free Exercise and the Establishment clauses is individual religious liberty and this exemption visits a very heavy direct burden on the religious burden on the religious liberty of people like Mason.

Unknown Speaker: Now, wait a minute.

It seems to me that has nothing to do with this case.

The burden on him.

If there's anything wrong with this, it's not the burden on him because you acknowledge, don't you, that the Civil Rights Act of 1964, with respect to discrimination on the basis of religion, could be repealed in its entirety; correct?

Whereupon, the burden on him would be just what it is here and there would be no unlawfulness about that.

If there is anything wrong here, it has nothing to do with the burden on him.

It has to do with the benefit to the Mormon Church.

Mr. Watkiss: Justice Scalia, I do not accept that view.

I think it has a lot to do with the burdens on third parties.

The issue here is a combination.

Can Congress accommodate the interests and preferences, the inconsistently applied preferences of this religious employer by visiting so direct a burden on the religious liberty of other people?

Unknown Speaker: Could discrimination on the basis of religion be eliminated from the Civil Rights Act?

Could everybody be permitted to discriminate?

Mr. Watkiss: I'm not sure at this day and age that it could, Justice Scalia.

I really am not, whether Congress could just really take the word 703.

I don't know.

Unknown Speaker: Congress cannot allow private individuals to discriminate on the basis of it at all, even if they do it uniformly for everybody.

Mr. Watkiss: I think it's a much tougher case.

I think--

Unknown Speaker: What would make it so difficult?

What constitutional principle is it that prevents Congress from going back to where the country was for 170 years before it wound up in 1964.

Mr. Watkiss: --I think you have the sort of a problem this Court dealt with the Reitman versus Mulkey case and that the Minnesota Supreme Court recently dealt with in--

Unknown Speaker: That's a ratchet.

Mr. Watkiss: --It's not a ratchet.

It's the problem that people have come to recognize, the nation has come to accept as a value to equal employment opportunity principle.

Unknown Speaker: But then if Congress changes its mind, that's a far better judge of what the nation accepts than what a Court says.

Congress says,

"The nation has simply changed its mind. "

Mr. Watkiss: We are not dealing with whether Congress could eliminate Title 7 tomorrow.

Whether Congress could eliminate the prohibition against religious discrimination tomorrow.

What we are dealing with is whether Congress can draw the sort of line that it drew in Section 702.

That's the issue before this Court.

I do not frankly know.

I think the considerations are complicated as to whether Congress could eliminate Title 7.

I have my doubts but that issue is not before you.

What is before you is a statute that singles out religious employers, as such, for absolute and sweeping accommodation and that accommodation visits substantial burdens on third parties and it provides substantial benefits to the religious employer.

It obviously provides substantial benefits to Mr. Lee's clients here.

They were essentially using that power to force people into their church houses and to force people to pay tithing and they were doing that at the exact same time they were exempting from this new rule the non-Mormons who were employed at these entities.

For example, at the Deseret Gymnasium, the Catholic squash pro wasn't threatened.

Mr. Mason was fired because he wasn't going to church and he wasn't paying his tithing.

So they could make exceptions to this policy.

It is quite clear that what was going on here was merely a heavy handed attempt to coerce people into line.

Unknown Speaker: I don't think the Catholic squash pro has tenure; does he?

Mr. Watkiss: Beg your pardon?

Unknown Speaker: The Catholic squash pro does not have tenure, he could be fired tomorrow, as I understand it, if they found a good Mormon squash player.

[Laughter]

Mr. Watkiss: Your Honor, I don't think he could.

Unknown Speaker: A good enough one, I should say.

Mr. Watkiss: I honestly do not think he could and the notion or--

Unknown Speaker: Or even a bad one.

[Laughter]

Mr. Watkiss: --No, no.

The squash player is very significant because it points out, really, the lack of any religious belief in operation here.

The Mormon church, plainly, among its six million members can find somebody competent to teach squash at their gymnasium.

It's not the lack of--

Unknown Speaker: No, but all I'm suggesting is, it seems to me the legal issue is precisely the same, whether you look at the Catholic and say he could be fired to be replaced by a Mormon, or look at the Mormon and say he could be fired because he doesn't tithe.

Either way, it's--

Mr. Watkiss: --I fully agree, Justice Stevens.

It's precisely the same issue.

They can't... our position is they can't impose a religious condition on people at that secular gymnasium.

You're quite right.

Unknown Speaker: --Mr. Watkiss, may I put it very simply?

Are you arguing that under Section 702 no church may employ people solely on the basis of their religious convictions?

In other words, limit employees.

Take the Baptists, Methodists, Presbyterians, Catholic, Jewish synagogues, are you saying that they could not limit employees to persons who share their faith?

This is not your position?

Mr. Watkiss: I need to know what kind of activity we're talking about here.

Unknown Speaker: We're talking about employees from the janitor to the--

Mr. Watkiss: I know but in what sort of capacity?

What the District Court attempted to do below, what Congress did in 1964 and what we believe is, in fact, constitutionally required, is some sort of line drawing between the religious and the secular.

Now, it's important to remember--

Unknown Speaker: --Could you just take a simple example?

Let's take an Episcopal Church.

Mr. Watkiss: --Yes, sir.

Unknown Speaker: Somewhere here in Washington.

It has a janitor; it has a policy of employing only Episcopalians.

Mr. Watkiss: Right.

Unknown Speaker: Let's say it discovers a janitor who is not an Episcopalian.

Would it be unlawful to replace him with one who did believe in the faith of the Episcopalians?

Mr. Watkiss: In the church?

Unknown Speaker: In the church.

Mr. Watkiss: I don't think it would.

Unknown Speaker: Well, what's the difference?

Mr. Watkiss: The difference is that the activities of the house of worship itself and the activities of religious schools are both, in common understanding and in the precedents of this Court and, indeed, in Title 7, recognized for what they are.

They are quite close to the core functions of religious practice, and, indeed, the Courts themselves have carved out an exemption that Congress forgot to give them and that is, for minister-like employees who are totally exempt under judicial construction from Title 7, similarly, Congress has created a more narrow and, I submit, constitutionally more justifiable exemption for religious schools in Section 703(e).

Now, we are not challenging that exemption here.

It's not at issue here.

But obviously, religious schools are much more at the heart of the religious mission than a gymnasium, a department store.

Mr. Lee says that there should be no--

Unknown Speaker: Well, now, Mr. Watkiss, you're dealing here, though, with a... the production of religious clothing for members of the LDS Church.

And you're dealing with the operation of a nonprofit... on a nonprofit basis of a gymnasium to carry out at least some aspect of the LDS beliefs and physical wellbeing.

So you don't have in this case a purely profit-making secular operation at all.

You have something that at least is marginally related to the function of the Church itself, don't you?

Mr. Watkiss: --I think marginally is correct, Justice O'Connor.

Your question is complicated, and respond to all of the parts will take me a minute.

But I think the first thing I'd like to focus on is the gymnasium.

The district court found a number of facts which plainly are not clearly erroneous, and indeed, on the record we've got here, they're clearly compelled.

The district court found that there's nothing in the running or the purpose of that gymnasium to suggest that it was intended to spread or teach religious beliefs, doctrine or the practice of sacred ritual.

Its primary purpose is to provide facilities for physical exercise and athletic games.

Now that gymnasium is open to the public.

It advertises to the public.

Those advertisements contain no religious message.

Throughout all the time that Mr. Mayson was employed there, the Mormon Church found it satisfactory to employ non-Mormons as well.

And indeed, there are still some non-Mormons there.

Your question also adverted to the profit/nonprofit distinction.

The first problem is, there's nothing in 702 that draws that line.

So Mr. Lee is quite right at least in his suggestion that the Mormon Church's string of department stores could start imposing these sorts of tests--

Unknown Speaker: Well, we have an as applied challenge here.

Mr. Watkiss: --Absolutely.

The other thing, though--

Unknown Speaker: Don't you think it's reasonable to... or it's a reasonable judgment to make that whatever a religious organization is doing not for profit but gratis is somehow in furtherance of its reason for being?

Whereas, things that it's doing for profit, it's making money that it can use for its reason for being.

But the things that it's doing just gratis, it must view as somehow being related to its primary purpose.

Mr. Watkiss: --Well, it's not--

Unknown Speaker: However... you know... and that's their judgment rather than mine, isn't it?

Mr. Watkiss: --It's not gratis.

If you or I wanted to go there an work out, Justice Scalia, we'd pay.

The fact that they subsidize it, the fact that it's tax exempt because it's a charitable donation of its facilities to a wide number of social groups, is their choice, and it's a laudable choice.

But I don't think you can merely say that profit/nonprofit draws a line responsive to the First Amendment concerns here.

It's too crude a device, and it doesn't exist in the statute.

Unknown Speaker: 0 xxx.

It's a pretty good generalization, isn't it?

And it avoids your getting into examining the creed of the faith and deciding whether indeed physical culture is an essential part of the Mormon religion or not.

And then it'll maybe be, you know, accurate 90 percent of the time.

Mr. Watkiss: There is no contention... the district court found as a matter of fact, and he was right... there's no contention that there's a sincerely held religious belief requiring the running of the gym; there's no sincerely held religious belief requiring that Mormons take exercise in a church run gym; and there's no sincerely held religious belief requiring that the employees of that gym be Mormons.

Those are the facts.

Unknown Speaker: Is that right or wrong?

Is that right or wrong?

Mr. Watkiss: That is clearly compelled on this record.

That is clearly right.

Unknown Speaker: Well, to figure that out, I have to study the Book of Mormon, I suppose, and--

Mr. Watkiss: No, absolutely not.

The fallacy of this... of this entanglement business is that... you've got to remember the opinion an which Judge Winder rendered his judgment as to the constitutionality of the statute as applied to Mr. Mayson was made on the basis of the Church's motion to dismiss.

The only evidentiary materials before the Judge were a few affidavits by my clients, and anything that they wanted to put in the record.

They took their best shot on the gymnasium.

And the Judge was clearly right in finding what he did.

Those findings are not clearly erroneous.

They're clearly compelled on this record.

So what--

Unknown Speaker: --xxx motion for summary judgment that the case went off on?

Mr. Watkiss: --They filed a document, Mr. Chief Justice, that was styled, motion to dismiss or in the alternative for summary judgment.

And they attached a number of affidavits to their moving papers.

And we responded with some affidavits of our own.

And I think the court treated it as a motion under rule 56, but it was prior to any discovery.

Unknown Speaker: Well, where did the findings that he made come in, then?

I mean, was it findings that were undisputed, basically?

Mr. Watkiss: Absolutely.

He took what they said about that gymnasium in their own papers.

We merely put in some of the objectively ascertainable facts about how the gym is being run.

Those weren't disputed either.

Unknown Speaker: Well, but then we don't have any clearly... clearly erroneous standard of review here.

If it's undisputed, presumably no one is going to challenge--

Mr. Watkiss: I think that's right.

Unknown Speaker: --On a motion for summary judgment you don't ordinarily have fact finding that's reviewed on the clearly erroneous--

Mr. Watkiss: Well, to the extent... Justice Scalia was asking me whether those findings were correct.

They're plainly correct.

They're undisputed.

But to the extent Mr. Lee wants to try to interject a dispute about them now, those findings were based on his clients' affidavits.

Unknown Speaker: --But those findings merely went to the proposition of whether the operation of the gym was a religious activity.

And it's admittedly not.

But it doesn't go to the question whether the operation of the gym somehow furthered the objectives of the Mormon Church to set a good example to their congregation and all the rest.

Mr. Watkiss: Justice Stevens, I think that everything the Mormon Church does is consistent with its beliefs.

I think you would say that about the activities of any religious organization.

They're not going to do something--

Unknown Speaker: No, all I'm suggesting is, I think you're overstating the character of the judge's findings.

All he found, as I remember it was, that the operation of the gym is not a religious activity.

Mr. Watkiss: --Well, he made a number of subsidiary findings that back that up, yes.

Unknown Speaker: Right, but they're all for that ultimate proposition, as I read it.

Mr. Watkiss: Well, I think that's correct.

Well, he made two findings.

He made finding one, that the gymnasium is not a religious activity; and that Mayson didn't have any religious responsibilities at the gym.

Unknown Speaker: Right.

But it doesn't mean that the operation of the gym is totally unrelated to what the Church regards as its mission?

Mr. Watkiss: No.

Indeed, I concede as much.

As I say, their department stores are consistent with their mission.

Their television stations are consistent with their mission.

Unknown Speaker: It's different, in other words, from the case we often talk about, running a spaghetti factory or something like that where you get... claim tax exemption for it.

In other words, it has some connection with the religion?

Mr. Watkiss: I think... well, the problem is, I think, that most religions would say that everything they engage in has some connection with their religion.

That's not a line that gives you any meaningful differentiations.

And it seems to me it essentially permits religions to set up little enclaves throughout the economy if they so choose, and use those enclaves to both advance their religious mission through the requirements they can impose on their employees, and also advance their economic power in the secular realm.

Unknown Speaker: Well, you can draw a line very easily if the only connection to their religion asserted is that this activity enables us to make money which we can spend for the purposes of our religion.

Surely, that's a very easy line to draw, and quite sensible.

Mr. Watkiss: Well--

Unknown Speaker: And you say that anything that's not engaged in for the purpose of making money must be immediately engaged in for some purpose that you think that... that the religion itself thinks, at least, is in furtherance of its religion.

Mr. Watkiss: --Justice Scalia, maybe that line can be drawn.

Maybe it can't.

My guess is, it'll get murkier.

Because my guess is that Mr. Lee's clients, for example, would say that they own a number of broadcast stations not just to make money but because it is a vehicle for promulgating views and interests and perspectives that are consistent with their beliefs.

So I don't think you're even going to get... I don't think you're going to get any religious employer merely to say that something they do is only to make money.

Rarely will you.

I won't yield a meaningful line.

Let's look at why the statute is unconstitutional as applied to Mr. Mayson.

This statute grants absolute and unyielding accommodation to the interests of religious employers by imposing a direct and a substantial burden, both secular and religious, on third parties, principally the employees.

Now in the Thornton v. Calder case, decided in 1985, this Court held that the state may not accommodate the religious interests of some by imposing substantial secular burdens on others.

Here, it seems to me, we have a much stronger case of unconstitutionality.

Because not only are serious secular burdens being imposed, but serious burdens on religious liberty of other people are being imposed.

Unknown Speaker: What was the burden being imposed in Calder?

Mr. Watkiss: The burden I think was that the employer, when the employee invoked the power of that statute... and I think it's important to remember that under both of these statutes, it was an individual who invoked the power of them... but in the Calder case, when the employee told the employer that he wanted a day off for his religious reasons, then the employer had the duty to try to accommodate him taking that day off.

Unknown Speaker: But that was a duty imposed... that was a duty imposed by the state, right?

Mr. Watkiss: That's correct.

Once an individual invoked the right.

Unknown Speaker: And what... what duty is imposed by the state here?

By the United States?

Mr. Watkiss: Mayson's given... Mayson is told that his interest in not having his religious beliefs coerced after 16 years of employment has to be subordinated to the Mormon Church's right to do it.

Unknown Speaker: That's right.

But it's not the state doing anything to him, as it was in Calder.

In Calder, the State was saying to the employer, you must accommodate this person.

The state moving directly against an individual.

Here, what does the state compel an individual to do?

Mr. Watkiss: The state is telling Mr. Mayson, you must accommodate your employer?

Unknown Speaker: Telling him he must accommodate his employer?

Mr. Watkiss: That's right.

Mr. Mayson either pays his tithe and goes to church or loses his job.

Section 702's second serious defect is its glaring lack of neutrality.

Now whether one characterizes the constitutional requirement as benevolent neutrality or as complete neutrality, Section 702 is obviously not benevolent, and it's obviously not neutral.

Unknown Speaker: Well, no accommodation of the free exercise clause by government is ever neutral; it can't be.

I don't think that's the test, is it?

Mr. Watkiss: Well, Justice O'Connor, people and particularly in your Wallace v. Jaffree and Wallace v. Jaffree concurrence, you were considering a type of accommodation that is very, very different than what we've got here.

Unknown Speaker: The fact of the matter is that government cannot accommodate the free exercise of religion and be regarded as neutral in doing it.

It's a non sequitar.

Mr. Watkiss: I think that's probably right.

And we're not arguing that every accommodation is just because of a lack of neutrality, unconstitutional.

The lack of neutrality is very important, though, as an indicia for suspicion.

This statute is nonneutral in a couple of ways.

It obviously treats religion better than nonreligion.

It says, the interests of Mr. Lee's clients get absolute deference.

Other employers don't get the benefit, and Mr. Mayson's secular interests don't get the benefit.

But it discriminates among religious interests too.

Mr. Mayson's religious liberty is given absolutely no weight.

The interests of Mr. Lee's clients to impose religious qualifications is given absolute weight.

You have nonneutrality going both ways.

Religion, nonreligion, and it discriminates among religious interests.

Unknown Speaker: But Mr. Watkiss, your opponent says that the statute allows churches to promote religion.

Isn't that what you're complaining about?

Mr. Watkiss: I beg your pardon, Justice Stevens?

Unknown Speaker: The statute allows churches to promote religion.

Isn't that the neutrality... lack of neutrality you're complaining about?

That the Mormon Church is insisting that this man do certain things that are required by the Mormon faith.

Mr. Watkiss: Right.

The fundamental--

Unknown Speaker: And the statute doesn't require that.

The statute permits that.

Mr. Watkiss: --The statute permits it.

Unknown Speaker: It permits the church to promote... to promote its own religious beliefs.

Mr. Watkiss: That's right, at the expense of individual religious liberty.

Unknown Speaker: That's always true.

Mr. Watkiss: Well, it seems to me that this statute turns First Amendment values on their head.

The establishment clause, just as much as the free exercise clause, has as its principal concern the protection of individual religious liberty.

Now to be sure, we give religious organizations some degree of autonomy.

But individual religious liberty is the primary goal of both religion clauses of the Constitution.

This statute turns those values right on their head.

They say that we will accommodate a religious organization just as such; let it do whatever it wants to in this area, regardless of the cost that that imposes on individual religious liberty.

Sure, it gives Mr. Lee's clients a very powerful tool to advance religion.

But that tool is economic coercion.

The value that the First Amendment--

Unknown Speaker: You mean the religion guarantees don't go to churches, they don't go to organized churches?

They just go to individuals, so that there--

Mr. Watkiss: --No, not true.

And that's not what I'm saying, Justice Scalia.

I'm saying that the reason we protect... the reason we give churches some degree of autonomy is because individuals fulfill their religious needs through groups.

Now, the church and the government try to get some mileage out of a couple of significant cases of this Court, beginning in the 19th Century opinion in Watson v. Jones and continuing through the Kedroff opinion, and most recently, through the Serbian Eastern Diocese opinion.

I think it's very, very important to reflect upon what those cases mean, and what they were based on.

The cases essentially hold that there is a degree of autonomy afforded to religious organizations in resolving internal disputes; and that civil courts won't interfere.

There's a very important passage from Watson v. Jones that gets repeated in variably by the Court's later opinions.

And I'd like to read it, because I think it focuses on the problem with 702.

In Watson, this Court wrote: The right to organize voluntary religious organizations to assist in the expression and dissemination of religious doctrine, and to create tribunals for controverted questions of faith within the association... and I'll skip some of it... is unquestioned.

All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit by it.

Now the emphasis on religious voluntarism in that passage, and in all those cases, is very clear.

Because individuals voluntary join churches, we give churches some deference.

This statute makes Mayson join a church to keep his job, his secular job.

It subverts the very notion of voluntariness which is fundamental... which is a fundamental peg of the reasons that we give churches some autonomy.

But you take that away, your churches are allowed to grow not because of the appeal of their dogma, as Justice Douglass put it, but because they can use economic muscle over employees in secular activities.

We have... we have fundamentally distorted First Amendment values.

You've given churches a vehicle to grow through coercion.

Not zeal, not appeal of dogma; but economic coercion.

That's fundamentally at odds with what the values of the First Amendment... the First Amendment protects.

Unknown Speaker: --Counsel, does the... does this record show whether your client at any time was a member of the Mormon Church.

Mr. Watkiss: Yes, he's been a nominal Mormon on and off throughout his life.

When he was hired--

Unknown Speaker: He just doesn't have a Temple recommend?

Mr. Watkiss: --That's correct.

He never has had one.

And it never was a condition of employment prior to 1980.

Unknown Speaker: xxx what you just described is one way to look at it.

I suppose another way to look at is the Mormon Church saying, or any other church saying, look it, we collect all this money out of the basket or tithing or whatever, and we'd like that money to be used for... for the members of our own church, for our faithful.

That's what we're for.

We're to serve them.

And we're adopting as a matter of policy the principle that we're going to spend this money in all of our enterprises on our own people.

We're going to hire our own people and so forth.

What's so terrible about that?

Mr. Watkiss: I think it doesn't justify the burden that it imposes on employees.

But Justice Scalia, you don't have that case here.

Mr. Lee's clients are perfectly happy to keep paying the squash pro with the same proceeds.

If they had a real consistent belief in that sort of thing we'd have a different case.

I don't think it would make a difference to the outcome, but it would be a different case.

Unknown Speaker: It just really shows the burden's not a one-way street.

They're willing to pay the cost of getting a second rate engineer but not a second rate squash pro.

Mr. Watkiss: That's right.

Chief Justice Rehnquist: Thank you, Mr. Watkiss.

Mr. Watkiss: Thank you.

Rebuttal of Rex E. Lee

Chief Justice Rehnquist: Mr. Lee, you have 12 minutes remaining.

Mr. Lee: The real question, Mr. Chief Justice and Members of the Court, is who is going to draw the line at that point that Mr. Watkiss has defined as, at the margin?

Who is going to draw the distinctions between whether the Church is really following an underinclusive policy, and whether it is more inimical to the Church's interests to have the best squash player in Salt Lake, notwithstanding that he's a Catholic but does keep the Mormon Church's standards?

Who is the draw the line between the janitor in the Episcopalian Church and the building supervisor in the Desseret gym, or the person who is in charge of obtaining visas for missionaries for the Mormon Church?

Unknown Speaker: Mr. Lee, I hope this is at least a nonsmoking, nondrinking Catholic?

Mr. Lee: That is definitely... a nonsmoking, nondrinking Catholic; better in that respect than some other Catholics that I know.

I think that the best answer... the best answer to that question of who is to draw the line at the margin is simply that you don't draw it.

That was Congress' judgment.

It was Congress' judgment after it had had eight years experience of Ceasar potentially having his hands on the things of God.

And then Congress simply said, let's draw it nice and clean.

I think Mr. Watkiss has effectively conceded that that's the best place to draw the line.

He's conceded that even though my clients do not assert Section 702 for their purely commercial activities, that there is difficult drawing the line there; and that if the courts' statements really mean anything, that there is some room between Scylla and Charybdis, then it has to mean that Congress can choose between the only two available exemptions to it, the 1964 and the 1972 version, particularly when you consider that all of the impacts that Mr. Watkiss was talking about would have been identical under the 1964 version, if you accept our view of the Desseret gym.

And that brings me to my next point.

Assume that you disagree, and that there is to be some line... there is to be some line that's drawn, that there is some minimum threshold, in order to cross what Thomas v. the Unemployment Commission said, you have to get past a practice that is just bizarre, that is just purely not religious, this is... that has clearly been satisfied in this case, and there are no findings in the district court to the contrary.

The district court did not make what we would call findings of fact.

It drew conclusions of law.

And what it said was, that there is nothing in the Mormon faith that requires employment discrimination; and there is nothing that requires exercise in a gym that... that practices discrimination.

But that takes entirely too narrow a view, and gets the courts far too deeply into what Mormonism is really all about, and the amount of leeway, administrative, implementing leeway that the church really has to have in order to carry out its objectives.

Because the fact of the matter is that the court... the church has concluded that its purposes can be furthered by providing a place where physical health, which according to Mormon belief is intimately linked to spiritual health, can be pursued in an environment where church standards are understood, respected and maintained.

It's further concluded that this can best be accomplished by people who understand those standards and are committed to them.

Other churches might reach different conclusions, but this is the conclusion that this church has made, and this is a conclusion that Congress vouchsafes to it.

Now, finally, there has been nothing said, either in the briefs or in this courtroom this morning, about the fact that if you rule against my clients in this case, that all exemptions are unconstitutional, including, I submit, the 1964 version, if you really apply the standards that Mr. Watkiss has expressed here.

Congress has to have the authority, when it perceives dangers to First Amendment values that have been raised by Congress' own statutes, to eliminate... to eliminate its own lawmaking as the cause of those problems.

For this reason, the judgment of the district court should be reversed.

Chief Justice Rehnquist: Thank you, Mr. Lee.

The case is submitted.

Attribution:

The OYEZ Project

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