Blessed Are Those Whose Pronouns Reflect Biology At Birth

Republican JesusA few days ago, Peter Greene at Curmudgucation wrote about a Physical Education teacher named Tanner Cross who was suspended for refusing to refer to transgender students by their preferred pronouns. I wholeheartedly agreed with everything Greene write about the situation and intended to tweet it a few times then leave it alone.

But it’s bugging me. The whole situation. The claims being made – especially the moral indignation of this public school teacher demanding the right to assert his personal religious beliefs in class.

Because that’s not how public school works.

There are a number of factors making this more complicated than it might otherwise be. The first is that Cross’s suspension came after he objected to the policy at a school board meeting and announced that he’d never “affirm that a biological boy can be a girl, and vice versa.” He equated using transgender teens’ preferred pronouns to “lying to a child” and “abuse {of} a child” before adding that it was also “sinning against our God.”

A few days later, Cross was suspended and – because school districts are pretty much required to dramatically overreact in every possible conflict – banned from campus, prohibited from attending school events, and essentially treated as if he’d already mowed down a half-dozen LGBTQ+ kids with his church-issued AK-47.

He hadn’t.

The policy wasn’t even finalized yet, let alone implemented. Presumably, the Board was taking comments on the thing when Cross spoke. There’s no indication in the stories I found that he jumped up in the middle of unrelated business and began ranting unexpectedly. I think his position is inane and unethical (more on that in a bit) but based on the information available it seems to me the district might have flipped the panic switch a bit prematurely.

I mean, can you even violate a policy that hasn’t been instituted yet?

But here’s the bigger problem. The swell of right-wing support rallying behind Cross for sticking it to them transgender kids and all their liberal nonsense about “gender identity” are taking the position that as a teacher in a public school he has freedom of both speech and religion, as if he can say and do whatever he likes in this role thanks to the First Amendment.

That’s not how it works.

On the one hand, the Supreme Court made it very clear a half-century ago in Tinker v. Des Moines (1969) that

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

This right is not absolute, however. Most of the cases I examined for “Have To” History: A Wall of Education (insert book promo here) which involved public funding being used to push religious beliefs involved “school choice” programs – taxpayer funded private schools indoctrinating students with their own versions of history, science, etc. The few “teacher free speech” cases involving public schools were mostly situations in which a teacher wished to teach creationism as being scientifically comparable to evolution scientifically, despite district curriculum policies to the contrary.

None of these teachers won. Evolution is (so far) a scientifically accepted theory of man’s development; Intelligent Design is an effort to replace evolution with unsupported religious beliefs. God may have created the universe, but to date that reality has to be accepted on faith.  

Teacher’s aren’t allowed to attack students for their beliefs or push their own faiths on students. I’d never kneel or protest during the Pledge of Allegiance during First Period because I’m not there as Blue Cereal flinging liberal pith everywhere; I’m there as an employee and representative of the state and school system, and they want to do the Pledge. When I didn’t like military recruiters coming to my school, I took it up with my administration privately. (If they’d asked me to fire a weapon on the other hand, I might have refused. Perhaps Mr. Cross would see that as comparable?)

I’ve had kids who loved Donald Trump. I might needle them a bit, but I’d never intentionally risk my connection with them by challenging their passion the way I might with other adults. I had a kid a few years back who repeatedly wore a shirt with Trump heavily armed and riding a T-Rex and who always made sure I noticed. We laughed about it, but I promise you that kid knew I loved and accepted him just the same.

Obviously the same thing is true for my gay kids, my Muslim kids, my atheists, my Mormons, or whatever. I’ve only had a few transgender students, and I try to show them the same love and respect as well. This isn’t something heroic on my part; it’s true of almost every teacher I know with every kid. It’s the norm. It’s how school is supposed to work.

Now, here’s something I don’t usually bring up. If I’m being honest, I don’t fully understand the whole transgender thing. I can’t quite get my head around it the way I’ve managed to do with race, religion, homosexuality, or whatever.

I share this not because I want to argue with anyone about it, but because the whole point is that I don’t need to “understand” or even “accept” it (let alone “approve” of anything) when it comes to my kids. My job is to teach them English and History and to treat them with respect and decency while I do it. I want to help them think, and yes – I sometimes care a little about all their weird personal drama, but only because (a) it tends to interfere with their ability to care deeply about appositives, and (b) I want them to feel validated and supported as human beings whenever possible.

What I’m not there to do is take a stand on my progressive ideals. The nice preacher’s wife next door to me feels the same way about her very conservative Christianity. Her faith is everything to her, but she doesn’t talk about it with kids unless they ask, and then only in the right circumstances. She wants to make sure nothing she says leaves anyone feeling “otherized” or degraded. That is, in fact, central to her faith. 

I know, right?

Teenagers are a sensitive, melodramatic bunch. It doesn’t take that much for them to feel marginalized – particularly if they belong to a group which is already kicked around and rejected, sometimes by their own families.

I said above that there were too many things in this case which complicate it, and I worry they’re going to be completely overlooked by the majority of people who end up taking very dramatic stands about it as things progress. Here are the last two I’ll be ranting about today.

Mr. Cross insists that using the preferred pronouns of transgender kids is against his religion. I’m curious what religion that might be. I like the way Greene covered this part in his post:

Exactly which part of the Christian faith, which teaching of Jesus, requires people of faith to object to trans folks? Cross (and his attorneys) are trying to hedge bets by suggesting the problem is the lying, that telling anything but the unvarnished truth is unChristian. I’m…. dubious. Cross teaches elementary school; I’d like to be there for the days when he blasts kindergartners for talking about Santa, the Tooth Fairy, or the Easter Bunny…

The courts, however, do not look to the validity or accuracy of a theological position. At best, they consider sincerity (does the person really believe this, or is it being used as an excuse for their behavior?) No judge worth his gavel will decide this one based on the complete lack of New Testament mandates regarding pronoun usage.

What I hope the courts will consider is the difference between religious or political speech outside of school hours (which is sometimes protected, although not always) and “I refuse to demonstrate this form of decency and acceptance to trans students specifically because they are going to hell for their perversion and lies.”

Which brings me to the last messy bit of this whole situation. Because Mr. Cross was suspended before the policy was even implemented, I’m curious what his solution in class with real students might have been (or might be, since he’s apparently been reinstated via court order). In my mind, the answer matters.  

Despite my hyperbole, I have no reason to think he intends to go full Santa Fe ISD and berate his kids for being hell-bound. If he did, I’d like to think the courts would refuse to categorize that as protected free speech or free exercise of his religion. But what if he defied the policy by always using the child’s name instead of what he believes to be the “correct” pronoun? Or what about using “they” instead of “he” or “she”? Are evolving grammatical norms the same sort of violation of his faith as, say… “lying”?

I’m not saying he shouldn’t still be held accountable for defying the policy, but morally and professionally, that would be a very different sort of violation, wouldn’t it?

Left unaddressed in the coverage of the case so far is the question of whether the transgender students of Loudon County, Virginia, have expressed any sort of preference themselves about how this could or should behandled. Is this policy an effort to respond to their concerns, or has someone been feeling all “woke” lately and decided to straight-white-savior everyone based on their enlightened Twitter feed? I’d like to assume the best, but…

Despite my own ambiguity about some transgender issues, I’m having a hard time sympathizing with Mr. Cross on this one. My inclination is to defend the kids and err on the side of acceptance, respect, and support. When conflicts like this erupt, the people most impacted tend to be the group already marginalized and mistreated to begin with, and this case has the potential to be a complete mess with plenty of point-missing and grandstanding from all sides.

I hope both parties surprise me and find a decent compromise before things escalate further. We’ll see.

“In God We Trust” (Or Else)

Team JesusThere are certainly plenty of wonderful individual people of faith around, including many Christians.

I feel obligated to open with this acknowledgement (disclaimer?) because my next several posts are going to focus on clashes between religious folks and public education which have been in the news recently, and it seems like every time you come across a story about someone asserting their Christian beliefs via legislation or the courts, they’re doing it for one of three reasons: (1) they want more government money for something without having to follow the same rules as everyone else, (2) they want the government to like their religion best and tell everyone about it more often because that’s “freedom of religion,” or (3) they want to be horrible to some group of people everyone else is supposed to be kind to.

All in all, it doesn’t paint a very flattering picture of the group as a whole. Then again, we’ve seen their voting habits, so…  

Texas Demands Empty Proclamations of Faith Without Substance

The Texas State Legislature has passed a bill requiring that any public schools which just happen to end up with one or more “In God We Trust” signs in their possession post them as prominently as possible. (As of this writing, it’s waiting on the Governor’s signature.) Presumably, they’re hoping this will pass constitutional muster thanks to a combination of factors:

  • The signage will be donated, not paid for by state tax dollars.
  • “In God We Trust” is our national motto – a statement of patriotism (supposedly), not religion.
  • The Supreme Court has previously ruled that some religious statements are so drained of meaning as to no longer trigger “wall of separation” issues.

The “national motto” thing is a remnant of our 1950s terror of all things Communist. If spiritual purity and a commitment to capitalism weren’t synonyms before World War II, they certainly became so by the time of color television. The Commies were “godless,” so one way the U.S. could stand tall was to insert things like “under God” into the Pledge of Allegiance and make “In God We Trust” our official national motto. (For those of you unfamiliar with the teachings of Jesus, he was very big on public rituals and governmental gestures of support.)

This conflation of all things red, white, and blue with orthodox Christianity has only intensified since. In the hearts and minds of the controlling (and voting) majority of American faithful, you can’t love Jesus and favor gun control legislation. You can’t take communion and oppose tax breaks for the uber-wealthy. And it’s easier for an elephant to go through restorative justice training than for a Black man to have equal rights in the eyes of the law because look they must have been asking for it or they wouldn’t have the mark of Cain to begin with. It’s hardly a coincidence that the same Texas legislature pushing the “In God We Trust” signage passed a law requiring sports teams to play the National Anthem before every game.  

From FoxNews.com:

Texas Lt. Gov. Dan Patrick was a staunch advocate for the bill, dubbed the “Star Spangled Banner Protection Act.” The measure was first introduced in February after the Dallas Mavericks briefly stopped playing the national anthem before their home games.

“Texans are tired of sports teams that pander, insulting our national anthem and the men and women who died fighting for our flag,” Patrick said in a statement in April. “The passage of SB 4 will ensure Texans can count on hearing the Star Spangled Banner at major sports events throughout the state that are played in venues that taxpayers support. We must always remember that America is the land of the free and the home of the brave.”

Hell Or TexasNotice the title – the “Star Spangled Banner Protection Act.” Because patriotism, like faith, apparently can’t survive without government propping it up by force. Note also the claim that American soldiers fight and die “for our flag.” Not our values, not our Constitution, and certainly not our people – for the cloth and the symbols and the rituals.

I won’t even try to make sense of mandating adherence to a ritual in order to remind us we’re the land of the free. Modern GOP “reality” gives me a headache. Instead, back to those godless public schools…

“Ceremonial Deism”  

In 2004, the Supreme Court heard a case involving the “under God” bit added to the Pledge in the 1950s. A non-custodial parent objected to his daughter being exposed to this daily chant of devotion in her local public school. The Court avoided deciding the case on its merits, finding instead that the plaintiff lacked standing to sue (the girl’s mother, who legally had custody, had no objections to the Pledge).
Several concurring opinions, however, indicated that had they addressed the issue itself, the Pledge would have been fine. The best-known was this bit from Justice Sandra Day O’Connor:

Given the values that the Establishment Clause was meant to serve… I believe that government can… acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as The Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

In other words, “under God” was no more spiritual than saying “bless you” when someone sneezed or “OMG!” when you see a cool TikTok video. It was purely ceremonial, stripped of substance by repetition and years of historical impotence.

That’s what Texas is going for with their motto requirement – something barely constitutional because it lacks the slightest spiritual or religious meaning in the eyes of the courts or, presumably, the citizenry at large. Otherwise, it would be blatantly unconstitutional.

A Moment Of Pray—Er… Silence

If Jesus Had Only Been Better Armed...The same basic approach was taken by numerous states when passing “moment of silence” legislation. These laws require school announcements each day to include 3-4 seconds of silence (some statutes specify a full minute) during which students can “reflect, meditate, or pray” or some variation thereof. These laws pass constitutional muster because they’re so pointless. Sure, kids can pray – but they don’t have to. Of course, they can also pray silently before the moment of silence, or after it. Kids have never ever EVER in the history of the United States been prohibited from praying silently during the school day, or from praying collectively and out loud on school grounds as long as it’s not in the middle of class. Never.

Legislators tried the same disingenuous strategy with the Ten Commandments as well, but the “HOW IS THAT RELIGIOUS?!?” argument somehow didn’t stick with that one. Opening with “Thou shalt have no other gods before me” kinda gave it away.

So if these moments and postings and such are neutered, meaningless symbols, why do some legislators fight so hard to make them happen?

Conservatives have somehow persuaded a majority of religious voters that these little token victories – the ones that slide past First Amendment concerns specifically because they lack substance – are somehow pushing Jesus back into public schools or securing God’s blessings on America. Mumbling “under God” or posting “In God We Trust” operates as a sort of code phrase, opening a spiritual portal for the Lord Almighty to swoop back in and take His rightful place in the big leather chair in the principal’s office. Statues become woodland creatures again, teenagers stop being interested in sex or any music recorded after 1957, and Common Core was never even invented, let alone mandated by many of these exact same legislators.

(OK, that last one wouldn’t be so bad.)

Let There Be (Gas)Light

Patriotic JesusIn other words, the only reason to pass these laws is because those supporting them believe they ARE statements of faith. They DO matter in distinguishing America’s official religion (which they’re willing to pretend isn’t official in order to secure it as such) from all of those other belief systems (which have no place in public schools because of the First Amendment).

Religious legislators have learned to go through the motions of manufacturing pseudo-secular reasons for these theological breaches. They assert that a “moment of silence” rewrites the chemistry of the teenage brain each morning or that the Ten Commandments are purely historical context for the U.S. Constitution (despite the two having not so much as a single line in common). The trick is to do this while still celebrating the banishment of the White Witch from Narnia with their constituents, who believe their nation is so great and their God so powerful that neither can survive without such gestures.

Legislators aren’t the only ones perfectly aware of the power of these little religious “victories.” They’re a reminder to anyone outside the cell group that they don’t belong. You atheists, Buddhists, Hindus, or Muslims, along with you LGBTQ+ teens and anyone else who isn’t showing proper deference to state-mandated religious and patriotic rituals – you can stay for now, but you are outsiders. You. Don’t. Count. And honestly, you’re ruining everything for the good people – the ones who believe and do the right things, in unison, whenever we’re told.

If you think I’m overstating it, go visit another country for a few years where the dominant culture is different than yours and send your kids to school there. Or just ask one of those gay or atheist types you don’t let your kids hang out with. Maybe they’ll try to explain it.

The Governor has about ten days from the time a bill is presented to either sign or veto it in Texas. You’ll know if it becomes law because you’ll hear a cock crow three times.

Jesus Texas Tacos

What’s In A Blaine?

I’ve written about the Blaine Amendment before in the context of Oklahoma GOP shenanigans a few years back. This time around, I’m looking to go a bit ‘bigger picture’ and give it a brief chapter in “It Followed Her To School One Day,” which might actually be finished before summer. Below is the first draft of that chapter.

The final product will be tighter (this one’s too long) and less ranty-ravee about things.While I’m not going for detached and boring in the book, I will shoot for something a bit more balanced and accessible to the average reader. This is not an ethical decision so much as capitalistic lust. I mean, let’s be honest – conservative dollars spend the same as liberal dollars, and they have WAY more of them, so no sense alientating them right out of the gate. Keep it subtle, so they can be offended and horrified after it’s too late to return it.

Here with you, however, my Eleven Faithful Followers, I can share my unfiltered wisdom with spices and color intact. 

What’s In A Blaine?

Blaine GatorsWhile it was not always mentioned by name, several major decisions of the Court in the early 21st century very much involved the history and potential future of the “Blaine Amendment.” Blaine is a general label applied to various provisions in 37 different state constitutions limiting or prohibiting the use of state funds to support religious organizations or sectarian activity. The precise wording and application vary from state to state, and 13 states don’t have one at all. Most Blaine Amendments are actually sections or clauses in their respective state constitutions and not “amendments” at all, but the term has proven persistent. Plus, it’s used in the singular (collectively) or plural more or less interchangeably – so that’s kinda fun.

The term dates back to Representative James Blaine of Maine, who pushed for a national amendment along those lines during the presidency of Ulysses S. Grant. The movement failed at the federal level, but the idea was picked up by numerous states in subsequent years – some voluntarily, and some as a requirement for entering the Union as the nation continued to expand. While innocuous enough as written, these various Blaine Amendments have something of a rocky historical past. “Non-sectarian” in the 19th century was often used euphemistically to promote anti-Catholic bias. (If Protestant was normal and proper, then “sectarian” was by implication any deviation from that – with emphasis on “deviant.”)

To be fair, it wasn’t just Catholics who were suspect. Your average 19th century WASP didn’t think much of anyone or anything not brazenly Protestant, at least in form and rhetoric. Catholics, however, were a particularly prominent and successful example of dangerous foreign influences and cultish ideologies trying to strip “real Americans” of their only-recently-established eternal birthrights to the continent. They were in many ways the Muslims of their era – technically entitled to their beliefs, and most wanting the same basic things for their homes and families as everyone else, but still viewed with suspicion because obviously their religion meant their loyalties must truly lay elsewhere, far across the globe in places most Americans still can’t locate on maps. (Nor should they have to, given that anything not in America is by definition un-American and besides-who-prays-to-dead-people-that’s-so-weird-am-I-right?!?)

Needless to say, American Catholics were relieved when a generation or two later the nation realized the true enemies of freedom were immigrants, labor unions, and women who wanted to vote.

In any case, there’s history suggesting that these Blaine Amendments weren’t always so much about keeping schools secular as keeping them vaguely Protestant. Variations on the idea date back to the anti-immigrant, anti-Catholic Know-Nothing Party of the 1840s and 1850s.

Make America Know-Nothing Again

Know Nothing FlagThe Know-Nothings, who actually called themselves “The American Party,” were the MAGA of their day – slogan driven, easily triggered, and fiercely patriotic (as long as the nation they perpetually celebrated prioritized those who looked and thought as they did). They didn’t have a “dark web” or the chance to go giddy over secret Q-Anon symbols encoded in the evening news, but they did their best to be melodramatic nonetheless. When asked about their political druthers or anything related to the party itself, members were expected to go full Sgt. Schultz and claim to “know nothing” – hence the nickname.

The true irony of this self-inflicted moniker was, of course, entirely lost on them.  

The Know-Nothings as a political party vanished after the Civil War, but their toxic sentiments, like the smell of desperation and last night’s cigarettes, proved difficult to wash out of Uncle Sam’s sparkly coat. One of these sentiments was the desire to “protect” public schools (relatively new entities, even in the late 19th century) from pagans, atheists, “Muhammadans,” and of course, Catholics.

There was no federal Department of Education at the time, and state-level governments weren’t always overly concerned with how local districts were run. It wasn’t unusual for students to be required to read from the King James Bible, sing hymns, or pray, and teachers often taught through the lens of Protestant doctrine. Not surprisingly, Catholic Americans didn’t love paying taxes to support public schools that openly reviled their faith and forced their children to perform Protestant rituals. Some began pushing for equitable state support for Catholic-flavored schools as well – an idea Protestants found horrifying. What a vile betrayal of our freedom of religion! The First Amendment was supposed to build a wall protecting us from stuff like this!

Thus, the Blaine Amendments – at least in some cases. In others, history suggests a genuine effort to balance the roles of church and state to the benefit of society as a whole. That’s the trick with politics and history. People (especially politicians) claim all sorts of motivations for things, both good and bad, and there are often a combination of sentiments and goals all mushed together in any slice of legislation or political rhetoric. Sometimes later generations can tease out the underlying motivations with confidence (the Eleventh Amendment, the Oklahoma Land Run); other times historians are left to grapple with conflicting information and informed speculation in their efforts to address hows and whys (the Salem Witchcraft Trials, the endurance of “Deadliest Catch”).  

A century and some change later, most Americans’ opinions of the Blaine Amendment have little to do with its origins and more to do with their personal religious druthers and the extent to which they feel persecuted and downtrodden by the presence of other belief systems in the society around them. Nevertheless, the origins of these state provisions have become a primary focus of those wishing to overturn it. The argument is that these Blaine Amendments are expressions of religious bias and discrimination, something Protestants in this country have generally favored but must now modify based on shifting dynamics and a shared cause – “the enemy of my enemy is still a heretic, but whatever.”

Historical Motivations

The Supreme Court has not always been consistent when it comes to factoring in historical contexts. In its defense, as discussed above, it’s sometimes difficult to unravel the motivations or intentions behind legislation or specific constitutional verbiage. The Second Amendment, for example, was clearly written with the assumption there would be no standing army in the United States and that local militias were thus essential to “provide for the common defense.” The amendment has nevertheless entrenched itself in the American psyche and longstanding jurisprudence far beyond its original purpose. Whatever else might have been intended, it certainly never came anywhere close to “individuals should be allowed a reasonable variety of weapons for personal protection or hunting but nothing designed primarily to fight in wars like, say, a militia might use.” And yet, over time, the meaning has been allowed to evolve based on changing times. Lawyers and judges still shamelessly wrestle with each word and tortured comma as if they don’t know perfectly well what an incoherent mess it is. The text and practical application has become the priority; the history of the amendment is now merely a curiosity.

Trump Statue of LibertyMore recently, in 2018, the Supreme Court upheld then-President Trump’s “Muslim Ban” on travel from a half-dozen countries. Trump had promised a “Muslim Ban,” his agents fought for a “Muslim Ban,” and his supporters celebrated the proclamation of a “Muslim Ban” because it was about time we started banning those Muslims with a Muslim Ban that bans them darned Muslims! After backlash from the courts, however, the administration managed to tweak the language enough that it could conceivably be viewed by someone who’d missed all the kerfuffle as a valid national security measure that only coincidentally sorta looked a great deal like a Muslim Ban. (It probably helped that they crossed out the title “Muslim Ban” at the top and scribbled “Valid National Security Measure” in orange crayon.) It was this “Huh? A ‘Muslim Ban’? Who told you THAT?” version the Supreme Court chose to validate, treating the act’s obvious intent and recent history like mysteries lost to the ages and certainly of no relevance to this shiny new valid security measure before them.

Other times, however, the motivation behind a law or government action suddenly matters, at least to interested parties. In cases involving holiday displays, moments of silence, or public installments of the Ten Commandments, the Court generally weighs the context and history of the legislation or decision-making and considers intent along with the actual text or result. The infamous “Lemon Test” begins by examining the purpose of a governmental action. The updated “endorsement test” first expressed by Justice Sandra Day O’Connor asks what a reasonable observer would perceive as the intentions of the government in a given situation – again bringing backstory into the foreground. In short, sometimes the history matters. (That’s why politicians have become so adept at signaling supporters as to what they’re really trying to accomplish with a particular piece of legislation while coating their official rhetoric in slippery nonsense; they don’t want their own words and true goals to be used to overturn pet projects.)

Despite the obvious benefits of this approach, it can be tricky business. As Justice Rehnquist expressed in his dissent in Stone v. Graham (1980), when enough legislators and constituents support something they believe has legitimate value and meets constitutional guidelines, it’s presumptuous for any court to step in years later and impugn their motivations in order to invalidate their choice

In other words, if something’s unconstitutional in its text and application, that’s one thing, but if it’s only unconstitutional because the courts know what people in the past were really up to, well… that’s potentially a bit more complicated. Which brings us back to the Blaine Amendment. Amendments. Whatever.

The dominant majority of WASP Americans in the late-19th century were certainly distrustful of Catholics (and Jews, and Chinese, and Freedmen, and transcendentalists, and DC Comics movie adaptations, and GMOs, and immunizations, and… you get the idea). It’s not universally clear that Blaine Amendments were solely the product of this bias, and states retained substantial wiggle room when it came to spending state funds on state interests through the end of the 20th century– with or without Blaine in the discussion. It was substantially weakened, however, by Zelman v. Simmons-Harris (2002), a landmark voucher case in which the Court determined that vouchers could be used at religious schools whether the state wanted them to or not. It seemed to be holding its own in Locke v. Davey (2004), however, when the court decided that the state of Washington was not violating the Free Exercise Clause by excluding theology majors from a state scholarship program.

Room For Playgrounds In The Joints

Only Mostly DeadThen, in 2017, a particularly conservative Court decided that the whole “wall of separation” thing was overblown. In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court ruled that if the state was going to offer ANY public institutions financial support – in this case, new bouncy rubber “gravel” for their playgrounds – it had to include religious institutions in the mix no matter what the state constitution might say or the original program intend. Hence Trinity Lutheran, an overtly religious institution which proudly proclaimed that everything it did and every facility under its control was there to bring little children to Jesus, would receive the same check directly out of state funds as the public school playground down the street which was just there so kids had a safe place to play – or perhaps instead of it. Blaine was now clearly on life support but still taking up bed space.

In Espinoza v. Montana (2020), the Court danced about on Blaine’s grave and urinated on its tombstone – despite never quite declaring it dead. This was another “school choice” case in which the majority determined that states had no right to exclude religious schools with overtly religious missions from programs paid for with public tax dollars. While religious schools were “churches” for purposes of shielding them from most forms of government oversight, they were suddenly “schools” again when it was time for checks to go out, as long as some veneer of “parent choice” was involved in the mix. In Montana’s case, the mechanism was a “scholarship program” in which donors could contribute to “scholarship funds” in exchange for tax credits. The organizations running the “scholarships” would then award them to families to use at private schools of their choice.  

Unlike in Zelman v. Simmons-Harris, there was little discussion in the Court’s opinion regarding mechanisms for ensuring funds were equitable – that is, that they actually covered most of the cost of tuition at the private school where they were applied, making it possible for families of limited means to participate alongside those for whom the “scholarship” was simply a nice bonus. The Court expressed little concern with whether or not the institutions in question were focused on providing a quality education across the curriculum or simply promoting their own religious dogma, suggesting that it wasn’t really their place to distinguish between schools that happened to be religious and religious institutions that happened to call themselves schools. The roundabout “scholarships” and “tax credits” system was sufficient to eliminate the need for state oversight of such things in the name of the Establishment Clause, while the Free Exercise Clause meant any effort to limit the use of public funds based on religious status was outright verboten.

The state could either indirectly support everyone who wanted to play, whatever the actual results or applications of the funds, or cancel the program altogether.

And yes, this time the Court called out Blaine by name as it yanked out the IV and held the pillow over its face. It stopped short of declaring Blaine irrevocably deceased, but… let’s just say things aren’t looking too good overall for the whole “church-state separation” thing. Whether that’s a positive or a negative depends on how much you actually paid attention in history class.

RELATED POST – Worth A Look: Locke v. Davey (2004)

RELATED POST – To Sleep, Perchance To Sue

One Nation Mumbles God (Is the Pledge Constitutional?)

You’ve probably heard that I’m working on a follow-up to “Have To” History: Landmark Supreme Court Cases because I mention it every chance I get and won’t talk about anything else so why aren’t more of you buying my book do you hate truth and America? Along the way, I’m posting rough drafts and ramblings that may or may not make it into the final version (working title: “It Followed Her To School One Day…”)

The following is a case that started off as a one-page insert but keeps trying to grow beyond its word count. We’ll see how that goes.

FOLLOW UP: The “final” version of this post (the one that ended up in the book) can be found here.

One Nation Mumbles God

Worth A Look: Elk Grove Unified School District v. Newdow (2004)

The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national significance are at stake. Even in cases concededly within our jurisdiction under Article III, we abide by a series of rules under which we have avoided passing upon a large part of all the constitutional questions pressed upon us for decision… Always we must balance the heavy obligation to exercise jurisdiction…  against the deeply rooted commitment not to pass on questions of constitutionality unless adjudication of the constitutional issue is necessary…

Consistent with these principles… {a} plaintiff must show that the conduct of which he complains has caused him to suffer an “injury in fact” that a favorable judgment will redress… Without such limitations… the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights…

Thus, while rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue, in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.

(from the majority opinion by Justice John Paul Stevens – internal quotes and citations omitted for clarity)

The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim. I dissent from that ruling. On the merits, I conclude that the Elk Grove Unified School District policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words “under God,” does not violate the Establishment Clause of the First Amendment…

Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church.

(from the opinion of Chief Justice William Rehnquist, concurring in the judgement)

There are no de minimis violations of the Constitution — no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can… acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as The Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). 

These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

(from the opinion of Justice Sandra Day O’Connor, concurring in the judgement)

Adherence to Lee {v. Weisman (1992) and other precedents established by this Court} would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day…

I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional. I believe, however, that Lee was wrongly decided. Lee depended on a notion of “coercion” that… has no basis in law or reason…

(from the opinion of Justice Clarence Thomas, concurring in the judgement)

Elk Grove v. Newdow involved an issue the Supreme Court has otherwise tried very hard to avoid: the inclusion of “under God” in the Pledge of Allegiance, at least in terms of its mandatory recitation in classrooms across the nation every school day. The Court had determined in West Virginia v. Barnette (1943) that students could not be required to stand and participate in the Pledge. Far more recently, however, in Lee v. Weisman (1992), the Court found state-sponsored prayer at graduation ceremonies – whether students actively participated or not – to be a violation of the Establishment Clause. By inserting religious dogma, however briefly, into an important educational ritual, the State was coercing students who wished to participate into choosing between silent acquiescence or the potential disruption and embarrassment of some form of overt protest.

Michael Newdow, an eccentric but sincere atheist, was convinced the daily conflation of patriotism with religious belief in his daughter’s elementary school classroom was at least equally inappropriate. He filed suit on behalf of both himself and his daughter, claiming among other things that this was a blatant violation of the Establishment Clause and he didn’t want his child subjected to it any longer.

General, brief references to the Almighty have been a part of innumerable American traditions since long before the First Amendment was an ink spot at the top of James Madison’s parchment. It has thus been difficult at times for the Court to reconcile the proverbial “wall of separation” with a history demonstrating that the authors of the sentiment obviously didn’t mean in everything. Unlike compromises over slavery or state vs. federal power, there’s no evidence the Framers willingly kicked this constitutional can down the road for their scions to sort out. They simply saw no conflict between a reasonable degree of religious acknowledgement in public life while shielding personal faith from the machinery of government.  

As the nation has evolved and the concept of “personal belief system” has expanded a bit beyond what could have been envisioned a few short centuries ago, this particular balance has proven trickier than expected. It doesn’t help that the religious majority hasn’t always shown itself to be overly accommodating or sympathetic to anyone outside the chosen few. Self-identifying as a spiritual “other” has often resulted in personal, professional, or physical harm, making governmental choices about even ceremonial prayers or displays a tad more problematic than a First Lady supporting one hockey team over another or the ceremonial naming of highways.

Supreme Court decisions sometimes have explosive potential, unfortunately. It matters what our government validates or who it marginalizes. Maybe it shouldn’t, but… it does.

The Ninth Circuit Court of Appeals agreed with Newdow and declared the use of the Pledge in public schools unconstitutional. Other federal courts had ruled differently in similar cases, setting up the exact sort of confusion that often prompts the Supremes to take up a subject they might otherwise prefer to circumvent. Once the details were officially before them, the majority found they had a very convenient out – Newdow was not the custodial parent of his daughter. While sharing custody in practice, the girl’s mother was the legal guardian and not thrilled with her daughter suddenly being in the headlines (not by name, but still!) for such a controversial reason. Besides, Mom was a church-goer, as was the daughter, and neither wanted to take this particular stand.

Thus the Court’s “aw, shucks!” opinion in which it somehow spun “no way we’re touching this” into “across the ages of jurisprudential magnanimity it has proven prudent for this hallowed body to shunneth the touching of grand slam breakfast issues such as these eggs with so much as the proverbial ten cubit pole.” In other words, the Court would not rule on the constitutional question involved because a majority was unpersuaded Newdow had standing to bring the complaint in the first place.

Technically, they may have been correct. Realistically, there were doubtless a number of relieved sighs. Maybe even cupcakes.  

Chief Justice Rehnquist, Justice O’Connor, and Justice Thomas concurred with the result, but not the reasoning. Each submitted a separate opinion suggesting that they’d be more than happy to declare a little patriotic Jesus here and there as perfectly acceptable, because… reasons. (With concurrences like that, who needs dissents?)

Despite the attempted pot-stirring by these three justices, the underlying issue remains foggy and unlikely to reach the Supreme Court again anytime soon. It is thus safe to keep stumbling and mumbling your way through the daily Pledge of Uh, Legions before the roughly 3-second “minute of silence.” Apparently this bit of generally unenthusiastic ceremony is constitutionally safe for now.

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To Sleep, Perchance To Sue…

Mary SleepingI’m working on a follow-up to “Have To” History: Landmark Supreme Court Cases which focuses on cases related to church-state issues in education. Unlike this blog, the book is intended to be a relatively neutral resource, focused on breaking down cases into plain, simple English with a little historical context and references to related cases rather than a parade of snark and hyperbole designed to throw blue meat to the liberal masses.

I mean, I’m keeping a pithy comment here and there just to give it some color, but I’m hoping for something damn near professional by the time it’s done. As I get to cases decided in this century, however, things get increasingly poignant and at times potentially pungent. Many of the justices writing these opinions are still on the bench, and it becomes increasingly difficult to frame the issues as foundational for current jurisprudence – because they ARE current jurisprudence.

This particular case involves the hiring and firing of private school teachers in religious schools. What I’m currently wrestling with is an apparent contradiction between how the Court treats private religious schools when it comes to school choice (“hey, these are just schools doing school things for valid school reasons like any other schools, except they happen to have a religious point of view… give them all the tax money or it’s religious discrimination”) and how it treats the same religious schools when they’re firing teachers for being old or getting sick (“hey, these are religious institutions whose whole function is spreading their faith… you can’t hold them accountable for anything they do or else it’s religious discrimination”). Now, let me be clear – I realize it’s certainly not that simple. The devil is in the–

Actually, that’s probably not an appropriate idiom with this specific topic. Sorry about that.

The point is, despite what my Twitter feed and periodic ranting might suggest, I doubt it’s as black and white as my summary above. What I’m not yet certain of is exactly how not black and white it is. That will require a little more reading of people smarter than me and – realistically – some waiting to see what the courts do going forward. What is clear is that relgious schools occupy something of a paradoxical zone in which they’re being granted increasing benefits at the expense of public education while being held to fewer standards or expectations. They’re benefitting from both the “valid, secular” function they claim to serve and from their religious status and mission, which is generally proclaimed as their top priority. Those two things needn’t always be in conflict, but let’s be honest – in the 21st century, they very often are. 

In any case, let’s get to it. Here’s my current draft of “Worth A Look: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012).” Could there be a catchier title?

Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission. Hosanna-Tabor expressly charged her with “lead[ing] others toward Christian maturity” and “teach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church.” In fulfilling these responsibilities, Perich taught her students religion four days a week, and led them in prayer three times a day. Once a week, she took her students to a school-wide chapel service, and—about twice a year—she took her turn leading it, choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible. During her last year of teaching, Perich also led her fourth graders in a brief devotional exercise each morning. As a source of religious instruction, Perich performed an important role in transmitting the Lutheran faith to the next generation.

In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception…

It is true that her religious duties consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects… The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation’s finances, supervising purely secular personnel, and overseeing the upkeep of facilities…

Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer…

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission… [T]he First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

(from the Court’s Majority Opinion, by Chief Justice John Roberts)

Cheryl Perich was a teacher at Hosanna-Tabor Evangelical Lutheran Church and School. Hosanna-Tabor classified its teachers as either “called” or “lay” instructors, preferring those “called” but accepting “lay” when necessary to fill positions with qualified candidates. Perich began as a “lay” instructor, but was asked to consider becoming “called,” which she did. The process required several theology courses, extra religious training, and approval by the larger church body. Her daily duties didn’t noticeably change, but she was at that point considered a “commissioned minister” of the church.

Perich was diagnosed with narcolepsy and missed part of the 2004-2005 school year. After extended sick leave and approval from her doctor, she notified Hosanna-Tabor that she was ready to return in February. By that time, the school had hired a long-term sub and suggested maybe she wasn’t as ready as she thought. They offered to pay part of her ongoing health insurance premiums if she’d retire without making a fuss, and her principal hinted she was probably going to be fired anyway so why not take the deal – and her narcolepsy – and make things easy for everyone, K?

She didn’t.

Perich informed Hosanna-Tabor that she’d spoken to an attorney and that according to the Equal Employment Opportunity Commission and the Americans with Disabilities Act, they couldn’t fire her for having narcolepsy. Hosanna-Tabor replied that shut-up-yes-we-can, and besides, we’re not firing you for having narcolepsy – we’re firing you for talking to a lawyer about us firing you for having narcolepsy. That was, they explained, very hurtful to their working relationship and thus against church policy.

Unlike, for example, firing someone for having narcolepsy.

As the case moved through the court system, the central question wasn’t so much whether Perich had been fired for having narcolepsy or for not wanting to be fired for having narcolepsy. It was instead the question of whether or not she qualified as a “minister” in the eyes of the law. The First Amendment’s religion clauses (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”) are traditionally understood to prevent government from getting involved in almost any issue related to church leadership or internal decisions regarding ministerial personnel. The history behind the First Amendment is simply too steeped in state control of or interference with official church leadership back in the proverbial day.

If Perich qualified as a “minister,” then Hosanna-Tabor didn’t have to prove they had just cause for terminating her; they merely had to prove that it wasn’t the court’s business what their reasons were – insubordination, violation of church policy, or simply that Jesus doesn’t like narcoleptics, it was a church matter. Period.

The Sixth Circuit Court which heard the case before it was appealed to the Supreme Court focused on Perich’s actual daily duties. Most of her time and energy seemed to be spent on teaching, with only a small portion of each day devoted to, well… devotion. In this sense, her job was very much like most teachers, including the “lay” teachers not labeled “ministers” by the church. The Supreme Court disagreed with this approach, insisting they must instead defer to the church in matters related to ministry – whatever the math might suggest. Perich had accepted a specific pathway to become “called” and taken on the title of “minister.” She filed as a minister on her taxes and spoke as someone commissioned by the church prior to being fired.

If it looks like a minister, walks like a minister, and talks like a minister…

The Supremes ruled for Hosanna-Tabor and tried to keep its decision narrowly tailored to the specific circumstances before it. Eight short years later, in Our Lady of Guadalupe School v. Morrissey-Berru (2020), the Court would cast such subtleties to the waves and rule that pretty much anyone a religious organization wanted to label a “minister” – even teachers in their private schools who had no other ministerial role or title – could be hired, fired, or otherwise handled at the discretion of the church without recourse to legal protections. The specific fallout from this has yet to be seen.

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