What would happen if Engel were litigated today?
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  What would happen if Engel were litigated today?
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Author Topic: What would happen if Engel were litigated today?  (Read 876 times)
MarkD
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« on: December 12, 2021, 11:38:22 AM »
« edited: December 12, 2021, 06:40:18 PM by MarkD »

Engel v. Vitale was a case that came up for review out of the state of New York. Given how much diversification has gone on in states like New York and California in the last 59 years, I certainly don't believe those states would presently have public school prayer policies anything at all like what New York had back then. But there are states today which are not particularly diversified, anywhere near as much as NY and CA. If R states like Idaho, Missouri, Alabama, etc., today had public school policies on prayer that were similar to the New York policy of 59 years ago, then how, today, would Roberts, et. al., handle a case challenging those state laws? What would be the Court's divide today?
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politicallefty
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« Reply #1 on: December 12, 2021, 01:31:41 PM »

I think it'd be 6-3 the other way. The removal of religion from schools has been one the biggest points of contention on the right-wing. It's probably second only to their attack on abortion rights. I think this is far more insidious though, as the plain text of the Constitution is clear as to religion.
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Actual Necromancer Joe Manchin
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« Reply #2 on: December 12, 2021, 09:39:24 PM »

I think it'd be 6-3 the other way. The removal of religion from schools has been one the biggest points of contention on the right-wing. It's probably second only to their attack on abortion rights. I think this is far more insidious though, as the plain text of the Constitution is clear as to religion.

The Establishment Clause is one of the only clauses in the Bill of Rights whose plain text actually goes a bit further than what even most social liberals want, or at least want to make a federal case out of right now. Special cases like cross-shaped monuments that are now of historical value themselves aside, a rigorous Establishment Clause analysis of things like "In God We Trust" and the expressly theistic version of the Pledge of Allegiance probably junks those things even though doing so is not currently very high on the socially liberal/SECULAR wish list.
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Skill and Chance
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« Reply #3 on: December 14, 2021, 06:39:34 PM »

I think it'd be 6-3 the other way. The removal of religion from schools has been one the biggest points of contention on the right-wing. It's probably second only to their attack on abortion rights. I think this is far more insidious though, as the plain text of the Constitution is clear as to religion.

The Establishment Clause is one of the only clauses in the Bill of Rights whose plain text actually goes a bit further than what even most social liberals want, or at least want to make a federal case out of right now. Special cases like cross-shaped monuments that are now of historical value themselves aside, a rigorous Establishment Clause analysis of things like "In God We Trust" and the expressly theistic version of the Pledge of Allegiance probably junks those things even though doing so is not currently very high on the socially liberal/SECULAR wish list.

Yes, this is one case where textualism clearly favors the left.  A public school compelling students to participate in a religious ceremony of any kind is no-go land taking the Establishment Clause literally (voluntary meetings of religious student groups outside of class are probably fine, though). 

I do think Engel would still win.  You would almost surely have Gorsuch writing that compelling students to participate in a prayer to a God they don't believe in violates their religious freedom, so the absolute best case for the school district is 5/4 in their favor if it follows the traditional divide.  But it would be very hard to get all 3 of Roberts/Kav/Barrett.  Roberts might vote for the school district on stare decisis/minimalism grounds, but Kav and Barrett would likely find the Gorsuch religious freedom argument very persuasive.  Also, remember that many of the school prayers in that era were explicitly Protestant and that 5 of the 6 SCOTUS conservatives are Catholic.

The school district's best bet would be to argue that if they lose on prayer, it would lead to certain "woke" material or presentations in a school being unconstitutional and make a play for Sotomayor and Kagan (who has a stare decisis/minimalism streak like Roberts).  If the school district wins, they probably win with Roberts, Sotomayor, Kagan, Thomas, and Alito, as strange as that sounds. 
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MarkD
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« Reply #4 on: December 15, 2021, 06:18:25 PM »
« Edited: December 15, 2021, 06:21:32 PM by MarkD »

Folks, folks, folks, .... you guys have apparently not read Engel v. Vitale. There was no "mandatory prayer," in the case (that is, it was only mandatory for one group of people, which I'll get to in a bit). Children were not compelled to pray at all. Not unless you count peer pressure, which the state can hardly be blamed for that. But every child in New York was given a note to send home to their parents, the note said something like Your child is not required to pray. If your child does not even want to hear the prayer, they are allowed to temporarily leave the classroom, wait in the hall outside the door, and re-enter the classroom when the prayer is finished. If your child does not participate, the teacher is prohibited from commenting, directly or indirectly, on your child's non-participation.

When the opinion was handed down, Justice William O. Douglas wrote a concurring opinion, and one thing he said was, "In short, the only one who need utter the prayer is the teacher, and no teacher is complaining of it." That is, no New York teachers joined in the lawsuit to challenge the law about voluntary school prayer. Completely voluntary school prayer.

I feel pretty confident that if Idaho, Missouri, Alabama, etc., were to pass a new law about voluntary school prayer, they would not require any teacher to recite prayer if they don't wanna. The law would probably say, "In each classroom, if the teacher chooses to not lead prayer, they must select a volunteer student to lead prayer, as in: 'Who wants to lead prayer today? Raise your hand.' "

Getting back to peer pressure, I'd like to believe that if any teacher or other member of the faculty saw Christian students harassing non-believers, they would give them a stern lecture about not bullying other people who are different.
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politicallefty
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« Reply #5 on: December 16, 2021, 08:02:33 AM »

I think it'd be 6-3 the other way. The removal of religion from schools has been one the biggest points of contention on the right-wing. It's probably second only to their attack on abortion rights. I think this is far more insidious though, as the plain text of the Constitution is clear as to religion.

The Establishment Clause is one of the only clauses in the Bill of Rights whose plain text actually goes a bit further than what even most social liberals want, or at least want to make a federal case out of right now. Special cases like cross-shaped monuments that are now of historical value themselves aside, a rigorous Establishment Clause analysis of things like "In God We Trust" and the expressly theistic version of the Pledge of Allegiance probably junks those things even though doing so is not currently very high on the socially liberal/SECULAR wish list.

Ironically, it was liberals during the Warren Court that were far more deferential to religious rights and recognition than the conservatives. The Sherbert decision from staunch liberal Justice Brennan was the basis for the RFRA. Employment Division v. Smith was written by Justice Scalia over the dissents of the liberal wing at the time (Blackmun, Brennan, and Marshall). I would consider myself a hardliner on the Establishment Clause, but I feel my view in that case was somewhere between Scalia and O'Connor. Obviously, that's a different line of cases compared to school prayer, but it was worth noting. Despite my general hardline stance on the Establishment Clause, many of these cases are anything but easy in terms of where to draw the line. However, I am far more adamant about school prayer considering the very nature of school itself.

Folks, folks, folks, .... you guys have apparently not read Engel v. Vitale. There was no "mandatory prayer," in the case (that is, it was only mandatory for one group of people, which I'll get to in a bit). Children were not compelled to pray at all. Not unless you count peer pressure, which the state can hardly be blamed for that. But every child in New York was given a note to send home to their parents, the note said something like Your child is not required to pray. If your child does not even want to hear the prayer, they are allowed to temporarily leave the classroom, wait in the hall outside the door, and re-enter the classroom when the prayer is finished. If your child does not participate, the teacher is prohibited from commenting, directly or indirectly, on your child's non-participation.

When the opinion was handed down, Justice William O. Douglas wrote a concurring opinion, and one thing he said was, "In short, the only one who need utter the prayer is the teacher, and no teacher is complaining of it." That is, no New York teachers joined in the lawsuit to challenge the law about voluntary school prayer. Completely voluntary school prayer.

I feel pretty confident that if Idaho, Missouri, Alabama, etc., were to pass a new law about voluntary school prayer, they would not require any teacher to recite prayer if they don't wanna. The law would probably say, "In each classroom, if the teacher chooses to not lead prayer, they must select a volunteer student to lead prayer, as in: 'Who wants to lead prayer today? Raise your hand.' "

Getting back to peer pressure, I'd like to believe that if any teacher or other member of the faculty saw Christian students harassing non-believers, they would give them a stern lecture about not bullying other people who are different.

I admit it has been some time since I last read Engel. However, the Court did go even further a couple years later in Abington School District v. Schempp. I would also argue that the example from Justice Douglas is not voluntary school prayer because school itself is not voluntary. His concurrence in the latter opinion I mentioned seems to be more relevant to your example. I'd also argue that nonconformist attitudes and sentiment are far more common now than in the early 1960s, although that has little relevance with respect to the Establishment Clause.

I'm not sure how a law such as that would be viewed by the current Court, but I would argue that it's highly offensive to past precedent and the Establishment Clause. The problem is that it is using the hours of instruction to be used for prayer. If one chooses on their own to pray or read a religious text on their own time (such as free time after finishing a test or something), that's perfectly fine. Using official school time is offensive. A teacher directing prayer or directing another individual to conduct prayer is tantamount to the school performing a religious function.
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politicallefty
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« Reply #6 on: August 06, 2022, 05:24:31 AM »

I figured this was worth bumping in light of Kennedy v. Bremerton School District. The Establishment Clause seems to lose at every turn with this current majority.

Quote from: Opinion of the Court, Kennedy v. Bremerton School District
In the end, the District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties—and then develop some explanation why one of these Clauses in the First Amendment should “ ‘trum[p]’ ” the other two. 991 F. 3d, at 1017; App. 43. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. Schempp, 374 U. S., at 308 (Goldberg, J., concurring). And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.

I think every aspect of the wall of separation that was recognized in Everson is at extreme risk. I thought I was being somewhat hyperbolic when I made my first post in this topic. That is certainly not the case now. I do not believe Engel or Schempp will survive this Court if the issue reaches that high up. The religious right is effectively writing out the Establishment Clause in the most meaningful ways relevant in today's society. That is the victory they want even more than the overturning of Roe.
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MarkD
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« Reply #7 on: August 06, 2022, 11:42:19 AM »

And now we have two more hyperbolic posts. *sigh*
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Actual Necromancer Joe Manchin
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« Reply #8 on: August 06, 2022, 03:07:12 PM »

And now we have two more hyperbolic posts. *sigh*

Not any more we don't.

Everyone, please try to keep in mind that the First Amendment's two religion-related clauses are not actually ones to which the current incarnation of the religious right is equally hostile.
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politicallefty
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« Reply #9 on: August 10, 2022, 08:31:11 PM »

And now we have two more hyperbolic posts. *sigh*

My thoughts on this are not hyperbole. I base my thoughts on what I have read from this Court and I find it quite disturbing. I know we disagree on the Establishment Clause, but that does not mean it is not under attack. This Court's going even further and trying to invoke free speech in religious cases. I can think of few things more repugnant to the Establishment Clause. How many Justices do you suppose would agree with Justice Black's interpretation of the Establishment Clause in Everson? I have trouble counting more than three with this current Court.

The religious right has been attempting to put religion and prayer back into public schools for decades. They finally have a Court that might just enable them to do so. If that's hyperbolic, I suppose the same would apply to those that predicted the demise of Roe once Amy Coney Barrett was confirmed. The difference with respect to religion is that Roberts is on board with that viewpoint and he prefers a more gradual approach.
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MarkD
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« Reply #10 on: August 13, 2022, 05:31:01 PM »

And now we have two more hyperbolic posts. *sigh*

My thoughts on this are not hyperbole. I base my thoughts on what I have read from this Court and I find it quite disturbing. I know we disagree on the Establishment Clause, but that does not mean it is not under attack. This Court's going even further and trying to invoke free speech in religious cases. I can think of few things more repugnant to the Establishment Clause. How many Justices do you suppose would agree with Justice Black's interpretation of the Establishment Clause in Everson? I have trouble counting more than three with this current Court.

The religious right has been attempting to put religion and prayer back into public schools for decades. They finally have a Court that might just enable them to do so. If that's hyperbolic, I suppose the same would apply to those that predicted the demise of Roe once Amy Coney Barrett was confirmed. The difference with respect to religion is that Roberts is on board with that viewpoint and he prefers a more gradual approach.

Your thoughts may be one thing, but your Aug 6 post said that you think "every aspect of the wall of separation that was recognized in Everson is at extreme risk." How many "aspects" of the wall of separation are there in Everson? Well, starting with the end of Everson, one "aspect" is that state or local governments that subsidize bus transportation of children to private schools DO NOT VIOLATE any constitutional principles, not even the Establishment Clause. Then there are a list of seven other "aspects" of the interpretation of the Establishment Clause that go as follows:
Quote
The "establishment of religion" clause of the First Amendment means at least this:
1) neither a state nor the Federal Government can set up a church.
2) Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
3) Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
4) No person can be punished for entertaining  or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
5) No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
6) Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa.
7) In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State." [Numbers added by me.]

Are there any other "aspects" of the Everson interpretation of the wall of separation that I did not notice than these?
And do you really stand by your stated theory that EVERY ONE of those "aspects" are currently under "extreme risk"?

I happen to have said your post was hyperbolic also because of the last two sentences. I can comfortably say those two sentences were either quite hyperbolic or else just plan dubious and disputable. "The religious right is effectively writing out the Establishment Clause in the most meaningful ways relevant in today's society. That is the victory they want even more than the overturning of Roe." How are they doing that? Has it ever occurred to you that they - "the religious right," (whom I can't clearly and definitively identify myself as one of them, although I have long had many sympathies with how they view politics and the Engel decision) - simply have a narrower interpretation of that clause than you, Hugo Black, and several others do, but that having a narrower interpretation of it would have nothing to do with trying to "writ[e] [it] out" of the Constitution? And how good are your mind-reading capabilities so that you could determine that they want "writing out the Establishment Clause" even more than they have wanted to overturn Roe?
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politicallefty
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« Reply #11 on: August 14, 2022, 03:56:26 AM »

Your thoughts may be one thing, but your Aug 6 post said that you think "every aspect of the wall of separation that was recognized in Everson is at extreme risk." How many "aspects" of the wall of separation are there in Everson? Well, starting with the end of Everson, one "aspect" is that state or local governments that subsidize bus transportation of children to private schools DO NOT VIOLATE any constitutional principles, not even the Establishment Clause. Then there are a list of seven other "aspects" of the interpretation of the Establishment Clause that go as follows:
Quote
The "establishment of religion" clause of the First Amendment means at least this:
1) neither a state nor the Federal Government can set up a church.
2) Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
3) Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
4) No person can be punished for entertaining  or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
5) No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
6) Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa.
7) In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State." [Numbers added by me.]

Are there any other "aspects" of the Everson interpretation of the wall of separation that I did not notice than these?
And do you really stand by your stated theory that EVERY ONE of those "aspects" are currently under "extreme risk"?

I should have said nearly or almost every aspect. I did mean to include a word of that meaning. In this past term, I would say that 5 and 6 have been massively eroded (and by extension, two and three). Seven doesn't really stand on itself, but is supported by the previous six. The first hasn't been an issue since the early days of the Republic and the fourth is basically covered by the Free Exercise Clause.

Quote
I happen to have said your post was hyperbolic also because of the last two sentences. I can comfortably say those two sentences were either quite hyperbolic or else just plan dubious and disputable. "The religious right is effectively writing out the Establishment Clause in the most meaningful ways relevant in today's society. That is the victory they want even more than the overturning of Roe." How are they doing that? Has it ever occurred to you that they - "the religious right," (whom I can't clearly and definitively identify myself as one of them, although I have long had many sympathies with how they view politics and the Engel decision) - simply have a narrower interpretation of that clause than you, Hugo Black, and several others do, but that having a narrower interpretation of it would have nothing to do with trying to "writ[e] [it] out" of the Constitution? And how good are your mind-reading capabilities so that you could determine that they want "writing out the Establishment Clause" even more than they have wanted to overturn Roe?

I would say that what I said there was more of a political statement than a legal one, but I stand by my words. There has most certainly been a force in this country that has sought to effect the overturning of Engel and its progeny. If the meaning has been reduced to barely nothing more than a hollow shell, it will have been essentially written out. This has been happening in conjunction with a significant change in the Free Exercise Clause, effectively placing certain so-called religious liberties above the law. Roe has been a lightning rod for most of the country while the religion cases stew on the back burner. I look at Justice Black's opinions in both Everson and Engel as two of the most profound and important decisions ever handed down by the Supreme Court. School is not church and that is how it should stay.
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