What Hath Trump Wrought: The First Amendment in the Post-Kennedy Court

Date/Time: Wednesday, March 27 2019 at  5:30 pm

Location: Ernst & Young LLP, 5 Times Square, New York, NY 10036

This year's First Amendment program will feature three cases on the Supreme Court's docket. The first concerns the religion clauses. A 40-foot Latin cross memorializing World War I soldiers killed in battle stands in a Maryland park. The Fourth Circuit held that the cross constitutes an establishment of religion, and ordered its removal. The case has attracted considerable attention because the rationale for the Fourth Circuit's holding calls into question many similar memorials (among other consequences), and may finally lead to the demise of Lemon v. Kurtzman. The second concerns freedom of access to information about the workings of government vs. exemptions to FOIA. Does democracy really die in darkness? The final segment involves this year's entry in the First Amendment cake wars: how should a court resolve a First Amendment-based objection to engaging in speech, where the context is commercial (baking a special order cake), state law prohibits discrimination by a business based on the usual categories, but the speech demanded by the customer contravenes the baker's religious beliefs? Come to the program where you will decide.


Segment #1 - Key Cases - The Maryland Cross

Lemon v. Kurtzman, 403 U.S. 602 (1971).

 A Pennsylvania statute allowed the Superintendent of Public Schools to reimburse private schools (mostly Catholic) for the salaries of teachers who taught in these private schools, from public textbooks and with public instructional materials. The act stipulated that "eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion." Still, a three-judge panel found 25% of the State's elementary students attended private schools, about 95% of those attended Roman Catholic schools, and the sole beneficiaries under the act were 250 teachers at Roman Catholic schools.

The Court held that the statute was unconstitutional because the cumulative impact of the entire relationship created by Pennsylvania gave rise to excessive entanglement between government and religion.  The Court adopted a threefold test:

  1. The statute must have a secular legislative purpose. (Also known as the Purpose Prong)
  2. The principal or primary effect of the statute must not advance nor inhibit religion. (Also known as the Effect Prong)
  3. The statute must not result in an "excessive government entanglement" with religion. (Also known as the Entanglement Prong)


4th Circuit Decision:  https://casetext.com/case/am-humanist-assn-v-maryland-national-capital-park-5

Transcript of Oral Argument (Supreme Court - Feb. 27, 2019):  https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-1717_8n59.pdf

Briefs:  https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1717.html

Segment #2 - Key Cases - The Cake Wars

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Obergefell  recognized the rights of same sex couples to marry, while noting that its decision  raised "serious questions about religious liberty." Id. at 2625 (2015) (Roberts, C.J., dissenting); id. at 2638 (Thomas, J., dissenting).   As the Chief Justice noted, "Many good and decent people oppose same sex marriage as a tenet of faith," and "[h]ard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage." Id. He and the Justices who joined his dissent anticipated that such "questions will soon be before this Court."

Justice Kennedy's majority opinion insisted that his opinion should not be read to disparage those "who deem same-sex marriage to be wrong . . . based on decent and honorable religious or philosophical premises," and that "those who adhere to religious doctrines[] may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned." Id. at 2602, 2607. 


Lower court decision: Klein v. Oregon Bureau of Labor and Industries, 289 Or. App. 507 (2017),  http://firstliberty.org/wp-content/uploads/2017/12/Kleins-Oregon-Court-of-Appeals-Ruling-Dec.-28-2017.pdf

Briefs:  https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-547.html