This  may be the closest we get to seeing the Supreme Court on T.V., or at least one justice asking questions of advocates who happen to be decorated felt fitted over someone’s hand.  Justice Sonia Sotomayor has taped an appearance on Sesame Street, interacting with Muppets who bring their cases to her.   And she does a pretty good job for someone who is not a professional actor (no snide comments, please!).  For example, Goldilocks and the Baby Bear (a bearrister?) bring their dispute before Justice Sotomayor, in which she expounds upon the important mens rea issue in the case, as she fashions an appropriate remedy to make the plaintiff whole.  Next week – Justice Stephen Breyer appears on The Simpsons as the long lost twin brother of Mr. Burns.  

Yesterday marked the 30th anniversary of the U.S. Supreme Court’s landmark decision in Widmar v. Vincent.  Perhaps you’ve never heard of this case, or perhaps you don’t really care.  But you should.  For Widmar is the cornerstone of modern religious liberty jurisprudence.

In the 1970s a small, but thriving group of Christian students from various denominational backgrounds met regularly on the campus of the University of Missouri at Kansas City.  They called their group, Cornerstone.  The students met in the University’s student center and other facilities to pray, sing hymns, read scripture, share personal testimonies, and discuss the Bible.

But in 1977, the University decided that Cornerstone could no longer meet in its facilities.  The University said that it had a regulation that prohibited the use of its buildings or grounds for religious worship or religious teaching.  I suspect that universities across the country had been doing this sort of thing for years.  There was, and still is, a mistaken understanding of the First Amendment as it applies to student speech on campus, particularly the application of the Establishment Clause, and university administrators, whether in good faith or not, regularly oust Christian student groups for fear of violating it.  But rather than capitulate and move their meetings off campus, the students in Cornerstone drew a line in the sand and said, “No more.”  We owe them a debt of gratitude.

Eleven students filed a lawsuit against the University, alleging that its policy of excluding religious worship and teaching from University buildings violated the First Amendment.  I can imagine they asked their lawyers many of the same questions ADF clients ask me:  Will this have an effect on my degree?  Will the university punish me for suing it?  What will I tell my friends?  These are valid questions, but it seems they already answered the most important question, “why should I do this?”  The eleven students must have known that the ability of their group to survive and share God’s Word depended on it reaching students on campus.  And the only way to reach students on campus was to be on campus.

The students road to justice, however, was not paved smoothly.  The federal trial court ruled against them and held that the Establishment Clause of the First Amendment not only justified, but required the University’s exclusionary policy.  Our nation’s misapprehension of the Establishment Clause runs deep.

A federal court of appeals reversed that ruling and held that the University’s policy of banning worship was a content-based regulation of speech for which there was no compelling justification.  It also ruled that the Establishment Clause does not bar religious speakers from accessing a publicly open facility on equal terms with all other speakers.

The University, not satisfied with this result, asked the Supreme Court to take the case.  And against all the odds, it did.  The case was argued the day before my second birthday in October 1981, and the Court handed down its decision two months and two days later, December 8, 1981, the day after the fortieth anniversary of Pearl Harbor.

In Widmar, the Court held that the University’s policy of excluding religious worship and religious teaching from generally open university facilities discriminated against speech based on its religious content.  In other words, if the University opened its facilities for basically any type of speech, it could not exclude religious speakers.   The Court also held that the government does not violate the Establishment Clause by opening its facilities neutrally to private expression.

When the decision came down, Linda Greenhouse wrote in the New York Times that the “decision is significant . . . in that it provides what may be the Court’s clearest explanation so far of how religious observance fits within the free speech guarantees of the First Amendment.”  Religion, it seemed at the time, would not be relegated to second-class status.

Widmar paved the way for many of the Court’s subsequent religious speech cases involving access to public school facilities, student activity fee funding, and church use of public facilities.  It even set the legal table for Congress to later enact the Equal Access Act, which protects the ability of religious student clubs to meet on public school property.  If you were ever in a Christian club at your public school or college or if you have ever attended a church or Bible study that met in a school or public facility, you have Widmar to thank.

Despite Widmar‘s remarkable impact on religious liberty, some have forgotten it.  Just this week, we told you about the disappointing result in Bronx Household of Faith v. The Board of Education of the City of New York.  The Bronx case, like Widmar, involved a group of Christians who sought to use publicly available school facilities for their Sunday morning gatherings, but who were prohibited from doing so because the city banned worship in its facilities.  For a decade the church litigated whether the city’s policy violated the First Amendment, and in June, the federal court of appeals ruled that the city’s policy was constitutional.  The result:  an estimated 60 churches will be evicted in February because of this ruling.  Yes, that’s right, in direct conflict with the Supreme Court’s decision in Widmar, a subordinate federal court excluded Christians from publicly available facilities because of the way in which they communicate their speech – worship.  It seems some people want to forget Widmar, or at least relegate it to a dusty storage room shelf.

But some have not forgotten.  Yesterday, on Widmar‘s 30th anniversary, many people gathered on the steps of City Hall in New York, including city council members, congregants, and pastors of churches that will be evicted in February.  They rallied to repeal the city’s discriminatory policy and to keep churches meeting in city boroughs that desperately need them.

So why shouldn’t you forget Widmar?  Professor Michael Stokes Paulsen says it best:

Few principles of the freedom of speech are more foundational or of greater practical importance to religious liberty than the proposition that religious speech is as fully protected as speech on any other subject . . . .

Widmar’s free-speech holding is thus fundamental to the freedom of religion. It is the basis for the right of evangelism: Freedom of religious expression, and the equal status of religious ideas, keep government from suppressing religious discourse and debate. And Widmar’s free-speech principle is closely allied with the freedom to exercise one’s religious convictions in society generally: It is the principle that proclaims the equal status of religious views, religious arguments, religiously motivated actions, religious associations, and religious identity in American public life. Freedom of religion means, at bedrock, the right of religious persons, groups, and ideas to participate fully and equally in the life of the community and in the marketplace of ideas.

So lest we lose the precious freedoms we have, don’t forget Widmar.  “Tell your children about it in the years to come, and let your children tell their children. Pass the story down from generation to generation.”  (Joel 1:3)

Last week I participated in a discussion sponsored by the Federalist Society at Stanford Law School in California on redefining marriage to include same-sex couples, and its collision with the First Amendment rights of those who define marriage as one man and one woman only. We had a great discussion on some of the cases we have described here, like Elane Photography in New Mexico (who was sued for discrimination for declining to photograph a same-sex commitment ceremony), Jen Keeton in Georgia and Julea Ward in Michigan (who were expelled from graduate school programs in counseling from Augusta State and Eastern Michigan University, respectively, for refusing to change their beliefs that same-sex behavior is morally wrong). 

What I did not expect at Stanford was a debate on the relevancy of the 1967 Supreme Court decision striking down Virginia’s law banning interracial marriage, Loving v. Virginia.   Many who support redefining marriage to include same-sex couples are convinced that this case greatly supports their position.  It does not.  I have found that many people have not read the decision, or do not understand what the Supreme Court ruled in that case.  The decision doesn’t help them.  So it is a dreadfully flawed argument and a non sequitur to argue as many do that ”just as a ban on interracial marriage was unconstitutional, so a ban on same-sex marriage is unconstitutional.”

I have earlier discussed the deficiencies in analogizing a law defining marriage as one man and one woman as the law struck down in Loving v. Virginia. Because so many find the argument persuasive, let me state here what I said to the law students at Stanford:

The Virginia law only banned white people from having an interracial marriage. An African American man could marry a woman of Asian descent under the Virginia law struck down by the Supreme Court.   That interracial marriage was OK because it did not include any white people.  The obviously uneven application of the law based on race is why the Supreme Court struck it down.  These despicable laws did not say, “whites can only marry whites, blacks can only marry blacks, Asians can only marry Asians,” etc., but many wrongly assume that is what those laws said.

Race is different than sex. It would have been unconstitutional too if the miscegenation law said, “whites can only marry whites, and blacks can only marry blacks, ” etc.  But that’s not what the Virginia law struck down by the Supreme Court said.  That hypothetical does not provide any precedent for striking down a regular marriage law.  Even if the law did say that, it’s not important, because race is different from sex.  Only one man and one woman can produce a child, and the parents can be of any race.  Two men together or two women together will never produce a child. So having an opposite sex couple is essential for producing children.  What is critical is having one man and one woman.  The parents’ race is irrelevant in their ability to reproduce.   It is rational, in fact, it is wise for a society to urge men and women to get married in order to produce and raise their children, because they represent the next generation of their society.

Race has never been a universally-accepted element in the states’ definition of marriage. States generally have agreed that people seeking marriage must meet several criteria.  For example, the two people seeking marriage must be a man and a woman, they cannot be married to anyone else, they both must possess the mental capacity to consent to marriage, they cannot be near relatives (like brother and sister) and they both must be above a certain age.  Race has not been a universally-accepted part of the definition of marriage.  For example, not all states banned white people from having an interracial marriage.  Some states, like Virginia, allowed whites to marry nonwhites for many decades before imposing a ban on whites marrying nonwhites.  The existence of miscegenation laws is a sordid historical fact.  The court decisions striking down those laws offer no principle of law that compels legalizing same-sex marriage.

Some states did not ban interracial marriages consistently. Virginia was faced with the dilemma that one of its founders, John Rolfe, married a nonwhite woman, the famed Pocahantas. Virginia resolved this dilemma by making Pocahantas an honorary white person, and exempted marriages (in some circumstances) where a white person married a Native American.

I hope I convinced at least some of the law students at Stanford to stop embracing the false parallel between Loving v. Virginia and the efforts to legalize same-sex marriage.

I have written an op-ed piece supporting the Supreme Court’s recent decision dismissing the challenge to Arizona’s tuition tax credit program, which Human Events published today. The article explains why the Supreme Court correctly dismissed the ACLU’s deficient lawsuit because the ACLU came to court representing taxpayers who had suffered no harm from Arizona’s school choice plan:

The Supreme Court’s decision to throw out the challenge to Arizona’s tuition tax credit plan gives needed breathing room to that state’s emerging and innovative school-choice system.  It also imposes common-sense requirements on opponents of school choice, including the American Civil Liberties Union, which now must come to court with people who have been actually harmed by the tax credit plan, and have more than just generalized complaints against it based on extreme notions of “separation of church and state.”

Arizona’s tuition tax credit program is just one part of the state’s bold school-choice plan to empower parents with the opportunity to select the best schools for  their children.  Arizona families can send their children to a vast array of charter schools that specialize in everything from drama to the classics to math and science.  Home schooling flourishes with minimal state regulation, and home-school students can participate in extracurricular offerings, such as band or sports, at nearby public schools.

And Arizona helps parents who believe private schools are best for their children by offering a state income tax credit to individuals who voluntarily donate to school tuition organizations that award scholarships to students attending private schools.  But the ACLU objected to this because the law allowed the organizations to choose to give scholarships to students attending religious schools as well as other private schools.  The ACLU sued, and won in a lower court before the Supreme Court threw out its lawsuit.  The reason?  The ACLU’s clients suffered no injury from the Arizona plan.

Under Article III of the Constitution, everyone coming to federal court must show that the government action they challenge has harmed them directly.  Generally, taxpayers cannot show any specific harm inflicted on them by a government program, so courts dismiss their lawsuit.

But back in the 1960s, the freewheeling Warren Court granted an exception to allow taxpayers to bring lawsuits based on the First Amendment’s Establishment Clause.  Since then, the ACLU and its secularist allies have rounded up taxpayers who oppose some government program that does not ban religious groups’ participation, then filed lawsuits claiming that the Establishment Clause requires those programs to shut out the religious groups.

Standing.  For most people, it is something they mastered when they were about one or two years old.  For lawyers, it is a migraine-inducing set of legal doctrines that dictates whether someone has the right to bring a lawsuit in federal court.  For two sets of university students, this migraine has been particularly acute because it has prevented them from challenging blatantly unconstitutional speech codes that governed their every interaction on campus.  And for the Supreme Court, it is the subject of two briefs that ADF filed yesterday.

As David French explains at Phi Beta Cons, this standing question is critical for students because it determines whether courts will even review their schools’ speech codes.  Until recently, the unquestioned rule was that students could challenge policies that “chilled” their speech.  As a nation, we value the free exchange of ideas so much that courts did not want people choosing not to speak for fear of being punished.  And so if a policy restricted a student’s speech, he could challenge it.  This was the rule that the Third, Sixth, and Seventh Circuits, as well as numerous district courts, applied to university students in light of similar Supreme Court decisions.

However, the Fourth and Ninth Circuits have taken a different approach.  In these cases, students engaged in speech that the First Amendment unquestionably protects.  Jonathan Lopez gave a speech defending the definition of marriage, and Rock for Life presented a display defending unborn life.  Jonathan’s professor interrupted his speech, called him a “fascist bastard” in front of the class, accused him of “offending” the class, refused to grade his speech (saying, “Ask God what your grade is” on the evaluation sheet), and threatened to get him expelled when he complained about this mistreatment.  The University of Maryland, Baltimore County moved Rock for Life’s display to a deserted area of campus, saying that it might “emotionally harass” other students.  Yet the Ninth and Fourth Circuits said neither Jonathan nor Rock for Life has the right to challenge the speech codes that motivated these actions.  And so policies that other courts have struck down remain on the books, and student expression on campus remains squelched.

Americans rightly value the freedoms the First Amendment protects, particularly the freedom to speak our minds.  Yet, if we cannot get in the courthouse door when those freedoms are violated, the First Amendment essentially becomes a dead letter.  And that is why Jonathan’s and Rock for Life’s cases matter so much for every student nationwide.