This class contains many of the most publicized and controversial issues of the entire course. As the 10th out of 15th lectures, now is a good time to address these topics.

Each of today’s topics has been in the national news the past month. In fact, each of these issues is prominent every month.

The Establishment Clause was in the media as the Alabama Supreme Court expelled Chief Justice Roy Moore from his position simply because he installed the Ten Commandments in the courthouse and did not immediately comply with an order by a federal district judge to remove it.

Free speech was in the news as the Supreme Court considered the constitutionality of new regulations to limit political contributions and expenditures. It is also in the news as schools consider whether students may wear T-shirts that protest President Bush.

The rights of criminal defendants were in the news as the Supreme Court surprisingly accepted an appeal by inmates at Guantanamo Bay, who had been held for over two years without a trial and were being denied access to American courts.

Gender equality is in the news in the fight over Title IX and college sports. I just wrote and filed an amicus curiae brief on this matter before the D.C. Circuit. I will explain further below.

There are two other issues that will have to wait until the next lecture: abortion and racial equality. Both issues have had enormous impact on American politics. Abortion has been influential since 1973, when Roe v. Wade invented a constitutional right to abortion. Many voters decide who to vote based on it, and the pro-abortion media distorts its coverage of candidates based on their views on this single issue.

Race has been controversial from the very beginning of our country, right through the Civil War until the present day.

These topics – religion, speech, criminal defendants, abortion, race and gender – are the focus of most political and legal controversies. They decide elections and the course of our country. An individual can spend an entire career focusing on any one of them.

The Establishment Clause

The “Establishment Clause” is the very first clause in the Bill of Rights: “Congress shall make no law respecting an establishment of religion ….”

For most of us, the Bible is the source of knowledge and its moral rules are the source of American law. The Ten Commandments are the best set of specific, formal rules of conduct ever devised. Our country was founded on its principles, and our legal system is guided by its wisdom.

“Thou shalt not kill,” the Sixth Commandment, is echoed in numerous laws against killing in America. Similarly, the other Commandments have inspired countless laws and notions of justice.

Why is the posting of the Ten Commandments on state property even subject to federal jurisdiction? For most of our history, the Establishment Clause was not even applied by federal courts against the states. The First Amendment, after all, applies by its terms only to Congress. See the above quote.

The Establishment Clause was first applied against the states in a decision that upheld what the state was doing. In other words, the Court agreed with the state. Beware of expansions of federal power like that. It is like a stranger saying, “Open your front door, but don’t worry because I am not coming inside.”

The Supreme Court announced it would apply the Clause against the states, but then appeared reasonable in deferring to the states. The Supreme Court thereby opened the door but stood outside to make it look friendly. Only later did it enter and beginning demanding that states end prayer and take down the Ten Commandments.

55 years ago, students in public high school in New Jersey recited the “Our Father” ever morning. States were then free to do this, and schools were much better because of it. But in 1962, in Engel v. Vitale, the Supreme Court applied the Establishment Clause to abolish school prayer.

In 1973, the federal court of appeals for the Tenth Circuit (which includes Colorado and Utah) allowed a permanent 3×5-foot granite monolith inscribed with a version of the Ten Commandments and other religious symbols. Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973). More recently, the federal Court of Appeals for the Third Circuit (which includes New Jersey and Pennsylvania) permitted a plaque honoring the Ten Commandments to remain on a courthouse wall. Freethought Soc’y v. Chester County, 334 F.3d 247 (3d Cir. 2003).

“Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens.” So wrote President George Washington in his historic Farewell Address, published five years after the passage of the Bill of Rights. Philadelphia Daily American Advertiser, Sept. 19, 1796.

President John Adams echoed the same conviction: “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” 9 The Works of John Adams, Second President of the United States 229 (Charles Francis Adams, ed. 1854).

Despite this, a federal judge ordered Chief Justice Roy Moore of the Alabama Supreme Court to remove a display in the state courthouse honoring the Ten Commandments. He was then himself removed from office for not immediately obeying the federal judge. In addition to misapplying the Establishment Clause, this decision also infringes on the Tenth and Eleventh Amendments. The interior decoration of the Alabama Supreme Court is an integral part of traditional state government, never ceded to the federal government. The citizens of Alabama should have the power to decide what goes in their own Supreme Court building.

Nothing in the First Amendment requires censorship of the Ten Commandments, which neither establishes a religion nor coerces anyone to believe. Those who oppose the moral message may feign offense, but appeasing the hypersensitive is not a goal of the First Amendment. Its prohibition on an establishment of religion does not require purging recognition of religion from everything public. Federal law expressly references God numerous times, as do our coins and officials’ oaths of office. The United States Supreme Court itself features Moses holding the sacred tablets.

NOTE: do not confuse the Establishment Clause with the Free Exercise Clause, which follows it in the First Amendment: “Congress shall make no law … prohibiting the free exercise thereof ….” A homework question asks about the difference.

Free Speech

One clause in our Constitution has expanded in meaning far greater than every other clause. The right to free speech has grown and grown and grown. It threatens to swallow the entire Constitution is some respects.

Flag burning is now free speech. So are political expenditures. Spending by a political candidate of his own money on his own campaign is free speech.

Commercial speech can be protected now too. A federal judge invalidated the “do not call” registry because he said it violated free speech of companies wanting to make the calls.

Free speech can include the right to hear. It can include a right to publish the laws. When combined with free press, it can protect newspapers who seeking to publish governmental secrets.

The right to free speech can even protect lies about public officials. Ronald and Nancy Reagan could not sue CBS and expect to win concerning the lies it was going to air in the docu-drama. If you are a public figure, then others have a free speech right to make outrageous claims about you. Only if the statements were made with malice, like a deliberate disregard for the truth, is a public figure allowed to recover damages for a lie spread about him or her.

You may agree with some or all of the expansions of free speech rights above. In general, conservatives and liberals tend to support broad free speech rights, and for that reason free speech has greatly expanded. Only pro-government moderates tend to oppose free speech in politics. Can you think of an example of someone famous who opposed free speech? (Answer: President John Adams and the Sedition Act; also Justice Oliver Wendell Holmes in Schenck v. United States (1919), note that kings tend to oppose free speech as well.)

Public schools do not allow full free speech (should it?). On one hand, it is easy to see why we would not allow students to be able to say whatever they like. Suppose they started talking about drugs? Suppose they wanted to be rude to the teachers? On the other hand, students can now disciplined if they criticize evolution. That’s not right.

There is not free speech in the military, either. If you insult your commander, then he is going to punish you for insubordination. About twenty years before Japan sunk most of our ships at Pearl Harbor, General Billy Mitchell spoke out against how our top military commanders were leaving our navy unprotected against that sort of attack. Later events proved him to be completely right, but at the time he was court martialed for insubordination and was both humiliated and forced to resign. (After the Pearl Harbor attack and after Billy Mitchell died, our military admitted its mistake and reinstated his benefits). Should there be free speech in the military?

Conservatives strongly oppose one type of expansion of free speech, however: pornography. Many liberals oppose it also. But a lawyer who represented the pornography industry (Abe Fortas) was a friend of President Lyndon Johnson, who appointed him to be a Supreme Court Justice. Pornography, like gambling, has a devastating effect on the minds of those taken in by it. And there is an enormous amount of money and profits pushing pornography on the public.

Speaking of gambling, is it free speech? Why not? (It’s more conduct than speech, and thus does not quality as free speech.)

IV. Rights of Criminal Defendants

The basic rights of criminal defendants include: (1) the right to trial by an impartial jury; (2) the right against unreasonable searches and seizures (usually that means a search without a warrant), (3) the right against Double Jeopardy (being retried after being found not guilty); (4) the right to receive a Miranda warning when taken into custody; (5) the right to a hearing before a judge if held in jail (writ of habeas corpus); and (6) protection against cruel and unusual punishment. There are other rights also.

Why do we protect criminal defendants far more than any other country? Should we?

Political moderates tend to think we give criminals far too many rights. President Nixon picked up a huge moderate vote by promising to be “tough on crime” and in favor of “law and order.” Conservatives at that time were also fed up with all the pro-defendant Supreme Court decisions of the “Warren Court” (i.e., the Supreme Court while Earl Warren was Chief Justice). It was the Warren Court that forced the police to tell suspected criminals that they have a “right to remain silent.” Many were outraged by that decision in Miranda v. Arizona (see p. 344).

Today, however, some conservatives agree with liberals that the federal government has gone too far in expanding its criminal power. The Patriot Act was passed to combat terrorism, but it has now been used to investigate non-terrorists also. Almost no conservative is concerned aboutNovember 16, 2003e suspected terrorists in Guantanamo Bay, but conservatives are worried about abuse of federal powers against American citizens. President Bill Clinton’s White House was found to have top secret FBI files on his political opponents. Do we want a future president to be able to prosecute his adversaries? Do we want to allow even the chance of that? The Constitution only allows a few federal crimes, like treason or misconduct on the high seas.

V. Gender Equality

Men and women, and boys and girls, are different in many important ways. Men like and are better at playing football, for example. This can be seen by flicking on the television on a fall Sunday afternoon. Women like fashion and are better at it, to take another example. Plumbers and firemen are almost entirely men; librarians and secretaries are almost entirely women. Mothers are entirely women! A gender-blind society where all differences are ignored is irrational and doomed for failure. Yet some insist that the law should push us towards a unisex society.

Why? For some, it’s just another way for them to oppose the Bible. Making men and women identical would wipe out the different roles of Adam and Eve and even try to cast some doubt on original sin, marriage and Jesus Christ. A unisex society would permit abortion to make women more like men. Gay marriage would be unstoppable in a gender-blind society.

The Equal Rights Amendment would have imposed a unisex society. It never passed, despite support by President Jimmy Carter, the Democratic and Republican Parties, and overwhelming majority of Congress and the entire media. Eagle Forum was founded as part of its successful effort to stop passage of the Amendment (“Stop ERA”).

However, Presidents Carter and Clinton did succeed in promoting gender equality in college sports, and the issue is on appeal before the D.C. Circuit right now. While Carter and then Clinton were presidents, the Department of Education issued and expanded a “proportionality test,” which encourages colleges to reduce the proportion of men on their sports teams to the overall proportion of men enrolled as students. 44 Fed. Reg. 71,418. This encourages colleges to make sure that “intercollegiate level participation opportunities for male and female athletes [be] provided in numbers substantially proportionate to their respective enrollments.”

The result is that men are cut from college sports until their percent participation is the same as their percent enrollment. This is difficult because most colleges are predominantly female. Howard University recently eliminated both its wrestling and baseball teams to reduce its percentage of male athletes. Mark Asher, “Howard Drops Baseball, Wrestling,” Washington Post, D1 (May 23, 2002).

The media discusses this issue under the name of “Title IX” of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681-1688. It requires that no one “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance” on account of sex. But it also says that “[n]othing contained in . . . this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federal program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area.” 20 U.S.C. § 1681(b).

Colleges are now eliminating and “capping” mens teams. “Capping” means that rosters on male squads are reduced to minimize the number of males. Instead of carrying 30 players, a baseball team may cap it at 18 simply to reduce its numbers. This bean-counting encourages colleges to expel athletes from squads for the sole purpose of finagling the numbers, and even to eliminate teams entirely. Such termination or “capping” of teams, in order to limit the overall number of male athletes, deprives many of them the benefits and enjoyment of participating. This has no redeeming benefit.

Even self-funded teams, like wrestling, cannot play in this numbers game. Some believe that liberal feminists really want to eliminate mens’ teams as their goal, since they resent all-male competitions like the Super Bowl, the World Series, and competitive wrestling. But this numerical equality causes all sorts of problems for women and men. Colleges are replacing their small, but popular, women’s gymnastics team with a larger crew team, made up of women with no crew experience or prior interest.

One of California Governor Gray Davis’ last acts in office was to extend this “proportionality test” to California public high schools. What do you think?

VI. Issues

1. What do you think of the proportionality test?

2. Should there be free speech in public high school?

3. Should there be free speech in the military?

4. Do you think the Patriot Act, passed to fight terrorism, should be applied to criminals who are not terrorists?

5. What do you think of charitable immunity, whereby charities are immune from being sued for large damages?

Lecture 10 Quiz