The Decision (Westside Community Schools v. Mergens, 1990 – Part Two)

July 18, 2021June 4, 2023 ~ Blue Cereal

Summary of Part One:

1. The Equal Access Act of 1984 prohibited any public school which permitted “non-curricular” clubs to meet on school property from picking and choosing which clubs they allowed based on ideologies or beliefs. The trick was figuring out what counted as “non-curricular.”

2. Bridget Mergens was a student at Westside High School in Omaha, Nebraska. In 1985, she asked her principal for permission to form a Christian club at the school.

3. The school said no, arguing that organizations like Chess Club and Scuba Club were essentially (if not directly) curriculum-related in that they were extensions of the sorts of things the school promoted as a whole, and thus inadequate to trigger the requirements of the act. Bridget didn’t buy it.

The Decision

The Supreme Court determined that Westside’s existing activities were non-curricular enough that they had a “limited open forum,” and the Equal Access Act did not violate the Establishment Clause. The school would let the kids have their Bible Club. Justice Sandra Day O’Connor wrote most of the opinion for the majority and the rest for a plurality of justices, while several who supported the result wrote concurrences differing in some of the details or focusing on different factors. Justice John Paul Stevens was the sole voice of dissent, which at least simplified the math on that side of things.

Justice O’Connor’s mostly-majority opinion recapped the history of the case, including the role of Widmar v. Vincent (1981) and the Equal Access Act which was clearly intended to apply the standards outlined in Widmar to public schools. The sticking point, she acknowledged, was the use of the term “noncurriculum related student group” in the Act. The bill’s authors somehow overlooked that one tiny little detail – like when you forget to add coffee to your cream and sugar or bring your car with you to the gas station. O’Connor weighed several possible approaches to resolving this before arriving at the Court’s solution:

In our view, a student group directly relates to a school’s curriculum if the subject matter of the group is actually taught… in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. We think this limited definition of groups that directly relate to the curriculum is a common sense interpretation of the Act that is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.
For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future. A school’s student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school…
On the other hand, unless a school could show that groups such as a chess club, a stamp collecting club, or a community service club fell within our description of groups that directly relate to the curriculum, such groups would be “noncurriculum related student groups” for purposes of the Act. The existence of such groups would create a “limited open forum” under the Act and would prohibit the school from denying equal access to any other student group on the basis of the content of that group’s speech…

In other words, if Westside had a Scuba Club but not a Scuba Class, they’d have to allow Bible Club as well – along with any ideological undesirables seeking similar sanctuary.

As to the Establishment Clause, the Equal Access Act passed the “Lemon Test” on all three fronts. It had a secular legislative purpose (equal access and protection of different viewpoints or beliefs), it did not substantially advance or hinder religion (it merely stayed out of the way), and it didn’t create excessive entanglement (the school wasn’t funding or regulating the meetings beyond what it would do for anything else happening on campus). “Indeed,” O’Connor explained, “the message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.”

Perhaps hoping the message would resonate more effectively if marinated in a light snark sauce, she circled back for a double tap:

{T}here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis… The proposition that schools do not endorse everything they fail to censor is not complicated.

So there you go.

Cautious Concurrence

Justice Anthony Kennedy, joined by Justice Antonin Scalia, agreed with the decision, but for slightly different reasons than those explained by Justice O’Connor. Justice Thurgood Marshall, joined by Justice William Brennan, on the other hand, had something more extensive on his mind:

I agree with the majority that “noncurriculum” must be construed broadly to “prohibit schools from discriminating on the basis of the content of a student group’s speech.” As the majority demonstrates, such a construction “is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.” …

The Act’s low threshold for triggering equal access, however, raises serious Establishment Clause concerns where secondary schools with fora that differ substantially from the forum in Widmar are required to grant access to student religious groups…

Justice Marshall explained that the University of Missouri—Kansas City (the institution prompting the Widmar case) had over a hundred different organizations on campus, many of which were political or issue-driven. There was little danger any reasonable person could believe that so many conflicting ideologies were simultaneously promoted by the University. The University also took great pains to ensure that none of these groups promoted themselves as official extensions of UMKC.

Westside, on the other hand, had for years openly embraced and promoted its extracurricular clubs and extolled the roles they played in the developing student character. They were part of the overall culture of the school, just like the football team or band. While Marshall and Brennan had no problem with the addition of Bible Club to the mix, this sort of enthusiastic endorsement by school officials would be inappropriate for a religious group. It would be too easy, they argued, for the average student to assume that the district was advocating this new option on the same terms as the rest.

Justice Stevens’ Dissent

The lone voice of dissent, Justice John Paul Stevens, was having none of it.

Can Congress really have intended to issue an order to every public high school in the nation stating, in substance, that if you sponsor a chess club, a scuba diving club, or a French club – without having formal classes in those subjects – you must also open your doors to every religious, political, or social organization, no matter how controversial or distasteful its views may be? I think not.

Well, gosh – when you put it that way…

Justice Stevens agreed with the majority that determining appropriate application of the Equal Access Act hinged on the definition of “noncurriculum related student group.” He agreed that the Court should look to Congress’ intent to help do so, and that Congress clearly meant to apply the principles of Widmar to schools like Westside. The Act was obviously intended to prevent discrimination against religious groups once a “limited open forum” had been established and contained language to prevent school officials from evading the Act’s requirements through sophistry – creatively redefining terms to fit their desired outcome.

At that point, however, Justice Stevens believed the majority had lost their black-robed minds.

What the Court of Appeals failed to recognize, however, is the critical difference between the university forum in Widmar and the high school forum involved in this case. None of the clubs at the high school is even arguably controversial or partisan.
Nor would it be wise to ignore this difference. High school students may be adult enough to distinguish between those organizations that are sponsored by the school and those which lack school sponsorship even though they participate in a forum that the school does sponsor. But high school students are also young enough that open fora may be less suitable for them than for college students…

That’s why Congress, in his understanding, left it up to school officials to decide whether to limit school clubs to those clearly supporting institutional ideals and goals – things the district could safely promote and encourage – or whether to open them up to more mature topics, as was the case in Widmar.

Once opened to political or religious ideologies, the district must honor the “limited public forum.” But, Justice Stevens insisted, neither Chess Club nor Scuba Club did that.

I believe that the distinctions between Westside’s program and the University of Missouri’s program suggest what is the best understanding of the Act: an extracurricular student organization is “noncurriculum related” if it has as its purpose (or as part of its purpose) the advocacy of partisan theological, political, or ethical views. A school that admits at least one such club has apparently made the judgment that students are better off if the student community is permitted to… compete along ideological lines… {I}t seems absurd to presume that Westside has invoked {this} strategy by recognizing clubs like Swim Timing Team and Subsurfers which, though they may not correspond directly to anything in Westside’s course offerings, are no more controversial than a grilled cheese sandwich…
{A} high school could properly sponsor a French club, a chess club, or a scuba diving club… because their activities are fully consistent with the school’s curricular mission… Nothing in Widmar implies that the existence of a French club… would create a constitutional obligation to allow student members of the Ku Klux Klan or the Communist Party to have access to school facilities.

Justice Stevens’ reasoning hearkened back to that of the district court which first heard the case (and wasn’t so far removed from Justices Marshall and Brennan in their concurrence). He seemed to share the same sorts of concerns which likely motivated Westside officials to turn down Bridget Mergens in the first place.

Aftermath

The courts have largely held to the standards established in Widmar and legislated by the Equal Access Act, in some cases extending them by inference to circumstances not specifically addressed in either.

A few years after Mergens, in Lamb’s Chapel v. Center Moriches Union Free School District (1993), the Court held that schools allowing community groups to use their facilities after hours could not deny the same access to a group based on its religious message. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the Court required the University to fund religious student publications on the same terms it did for other non-curricular student periodicals. Good News Club v. Milford Central School (2001) offered a few minor variations on the theme but was otherwise a repeat of Lamb’s Chapel – with the same outcome.

Some districts have chosen to eliminate extra-curricular activities entirely rather than open their doors to kids wanting to meet under the auspices of Gay-Straight Alliance (GSA), Muslim Students Club, or any of the variations of Atheist or Satan Club. Districts are permitted to refuse groups promoting behavior or values clearly antithetical to the school’s mission (the KKK, for example, could be refused without much constitutional danger – although the Communists would probably get their club), but the boundaries of this discretion are still being tested here and there.

Local courts have also periodically confronted variations of the issue (if the district cancels all clubs to avoid allowing Teen Q-Anon to meet, does that violate the spirit of the law?) By and large, however, the principles established in Mergens have remained firm for over three decades and there’s little reason to expect them to change anytime soon.

NOTE: This post is an excerpt from “Have To” History: A Wall Of Education

Bridget Wants A Bible Club (Westside Community Schools v. Mergens, 1990 – Part One)

July 17, 2021June 4, 2023 ~ Blue Cereal

Background

In Widmar v. Vincent (1981), the Supreme Court determined that when the University of Missouri (Kansas City) made its facilities available to extra-curricular groups outside of normal school hours, it created a “limited open forum.” If religious student organizations wished to use the facilities on the same terms as other groups, they must be allowed to do so. Not only was this NOT a violation of the Establishment Clause (as the University had feared), but denying equal access was a form of inhibiting students’ “free exercise” of religion. Justice Lewis Powell, writing for the majority in Widmar, explained it this way:

The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech. In this context, we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion…
It is possible – perhaps even foreseeable – that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization’s enjoyment of merely “incidental” benefits does not violate the prohibition against the “primary advancement” of religion…

A few years later, the U.S. Congress – no doubt hoping to seize the moment – passed the Equal Access Act of 1984. It essentially took the standard expressed in Widmar and applied it to public schools. Any district which prevented students from having meetings or forming clubs on the basis of the “religious, political, philosophical, or other content of the speech at such meetings” would lose federal funding and receive a very nasty glare from D.C.

The Legislature had been frustrated in their previous efforts to work around or overturn the Court’s “anti-prayer” and “anti-Bible” decisions in Engel v. Vitale (1962) and Abington v. Schempp (1963), and despite his general popularity, President Reagan had made little progress on his promised Amendment to put the government back in charge of teaching kids what they should believe about Jesus. (OK, that’s not entirely fair. Reagan wanted an Amendment to leave it up to each state how to teach students about Jesus.)

The Equal Access Act included surprisingly practical guidelines. It distinguished between curricular organizations and those unrelated to specific coursework. Meetings had to be student-driven and not facades for outside groups coming in to run things. Perhaps most significantly, they had to be entirely voluntary and outside classroom hours. Before school was fine, lunch was fine, after school was fine – any time other clubs or groups could meet. Faculty “advisors” could attend (there are liability issues when minors are left to their own devices for extended periods of time) but not participate and certainly not lead.

All in all, it was a rather reasonable piece of legislation. That alone makes it something of a novelty in terms of Congress and public education.

Bridget Wants A Bible Study

Bridget Mergens was a student at Westside High School in Omaha, Nebraska. In 1985, she asked her principal for permission to form a Christian club at the school. They’d read and discuss the Bible, pray together, and enjoy what those on the inside call “fellowship.” Membership would be open to anyone, however, regardless of their beliefs – because, you know… school.

Bridget suggested they skip the required “faculty sponsor” part. (Presumably she was under the impression this might improve her chance for approval.) The principle said no. She went to the Associate Superintendent, who turned her down as well. Their initial argument (inferred from the court’s response) seems to have been that there could be no clubs without a sponsor, and that this club couldn’t have a faculty sponsor because it would violate the Establishment Clause. Bridget, being a persistent little thing (Luke 18:1-5), took her case to the School Board, which backed school administration.

This was stranger than it may at first seem, given several factors. One, this was Nebraska – a perennial “red state.” Two, this was happening in 1985, a mere year after the passage of the Equal Access Act – big news all across the country, and of particular interest to school officials who, as a general rule, don’t like being sued. Three, there’s no way to read the act as suggesting that religious clubs can’t have teacher sponsors – merely that they can’t participate in the actual discussions or activities. If administration actually played that angle (as the record suggests), it was nonsense… and they should have known it was nonsense.

So why would the district fight this particular request so vigorously? That’s part of what made (and makes) this particular issue so interesting.

Let’s Start A “Contemporary Legal Issues” Club

Mergens, with the support of a few friends and parents, filed suit in their district court. They argued that in addition to violating the Equal Access Act, the school was denying them their freedom of speech, association, and religion as guaranteed in the First Amendment (applied to the states via the Fourteenth). The district clearly had dozens of non-curricular clubs – including Chess Club, Rotary Club, a Scuba Diving Club (naturally very big in, um… Omaha), Photography Club, National Honor Society, Future Business Leaders of America, etc.

The district’s defense was innovative, and perhaps even sincere. All thirty or so of the clubs already established at Westside, they argued, were, in fact, curriculum-related. And since there were no extra-curricular clubs meeting on school property, the Equal Access Act did not apply. The Act assumed a “limited public forum” – and Westside hadn’t created one, legally speaking.

Rotary club? That was an extension of citizenship and public service, important school values and an essential part of each social studies course. Chess club? That was math and science and problem-solving, actual standards in several courses. Photography? Obviously a voluntary extension of art class. And scuba diving? Dude, physical education is a legit course – don’t write it off so easily. But this “Bible Club”? This was different. This was “extra-curricular.” Unlike Scuba Club.

As a backup, they asserted that even if the Equal Access Act did apply, it was unconstitutional – so it didn’t matter.

The district court accepted this reasoning and rejected Mergens’ claims. The case was appealed to the 8th U.S. Circuit Court of Appeals who reversed that decision and found in favor of Bridget’s Bible Club. The district – oddly tenacious, it seemed – appealed to the Supreme Court, which agreed to hear the case in 1990.

If You Give A Mouse A Bible Club…

The most likely explanation for Westside’s stubbornness had nothing to do with opposition to the kids’ faith. There’s at least one reference in court records suggesting that Westside’s principle encouraged the club to meet in the church next door to the school. The Court’s majority opinion mentioned that “the school apparently permits {students} to meet informally after school,” suggesting that at some point the school agreed not to chase them out of the building as long as they didn’t call themselves an official school club. This still meant being ignored in official club listings and left out of announcements, but it hardly evinced a hostility towards the general idea of kids getting together to study the Bible and pray.

On the other hand, what would be the implications of this “limited public forum” described in the Equal Access Act if the club were officially permitted? None of the existing clubs were particularly “issue-driven” or controversial. The school wasn’t wrong that they largely promoted existing school values and the usual “be a good citizen” stuff.

If the Protestants could have a club, however, then by law so could the Catholics. Next could come other faiths or issue-driven groups. Young Republicans. Young Democrats. Wiccans. Gay students. Black students. Atheists. Pro-life clubs. Pro-choice clubs. Oh god, Dungeons & Dragons could stage a comeback!

While the community would probably have been fine with students voluntarily meeting after school to read the Bible and pray, it’s not much of a stretch to imagine some would have been less-thrilled at the idea of their tax dollars supporting (in their minds) the Gay-Straight Alliance or Black Lives Matter (neither existed yet under those names, but the ideas were certainly nascent). Would the school approve Anarchy Club? Sodomites 4 Satan? MSNBC watch parties? At some point they’d reject a group based on its content and quite possibly be sued. At that point, all bets were off as to the fallout. Better to heed the advice of noted American philosopher Barney Fife: “Nip it, nip it, nip it in the BUD!”

In other words, it seems unlikely that the district fought against Bible Club because they didn’t understand the legal implications. More likely, they fought against it because they did.

NOTE: This post is an excerpt from “Have To” History: A Wall Of Education

Part Two: The Decision

Blessed Are Those Whose Pronouns Reflect Biology At Birth

June 8, 2021June 4, 2023 ~ Blue Cereal

A 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)

June 6, 2021June 4, 2023 ~ Blue Cereal

There 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.”

Notice 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

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

In 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.

What’s In A Blaine?

February 13, 2021June 4, 2023 ~ Blue Cereal

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?

While 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

The 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.

More 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

Then, 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.

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