First Among Equals (14 page)

Ironically, the two Clinton appointees were building on a stinging opinion in dissent written by Justice Anthony Kennedy. The First Amendment's leading defender chided the Court's opinion for its smugness and arrogance. Justice Souter, he said, had been “cavalier” with First Amendment issues, treating claims raised by Zev David Fredman with indifference. He then turned his attention to
Buckley v. Valeo.
In a scathing attack on the post-
Buckley
regime, Justice Kennedy lamented that “the compromise the Court invented in
Buckley
set the stage for a new kind of speech to enter the political system. It is covert speech. The Court has forced a substantial amount of political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits, limits which take no account of rising campaign costs.” Kennedy bemoaned the fact that the current system, bad as it was, had not arisen from the deliberate Congressional choice but was, instead, a judicial invention: “[I]ts unhappy origins are in our earlier decree in
Buckley.” Buckley's
bifurcation between contributions and expenditures had been unsound. “The melancholy history of campaign finance in
Buckley's
wake shows what can happen when we intervene in the dynamics of speech and expression by inventing an artificial scheme of our own.”

Justice Kennedy stopped short of embracing the libertarian approach taken by Chief Justice Burger in his dissent in
Buckley
and now championed by Justices Scalia and Thomas in their dissent in
Shrink.
But he indicated he would overrule
Buckley
and return the issue to Congress and the states. Perhaps new reforms would be legislated and would pass muster under the First Amendment. For now, however,
Buckley
should be jettisoned. “[T]he existing distortion of speech caused by the half-way house we created in
Buckley
ought to be eliminated. The First Amendment ought to be allowed to take its own course without further obstruction from the artificial system we have imposed.”

For their part, Justices Thomas and Scalia would restore the law to its libertarian,
pre-Buckley
condition. Political speech, they said, is at the core of First Amendment concern. The
Buckley
incursion into the most important arena of free speech had created a “most curious anomaly.” Turning to Fredman's candidacy, the dissenters noted his compelling need for large donations. Fredman lacked the advantages of incumbency, name recognition, or personal wealth. He had “managed to attract the support of a relatively small number of dedicated supporters,” but their potential support would be a crime under Missouri law. The upshot: The state prevented Fredman's message from reaching the voters. This was emphatically wrong under the First Amendment.

But the three dissenters fell short.
Buckley
had moved the Burger Court to the First Amendment “middle ground,” and the Rehnquist Court in
Shrink
was unwilling to vacate that territory, troubled though it had proven to be. Even if all sides seemed disgruntled with
Buckley's
mandated system, the Court (by a 6–3 margin) would remain in what it deemed the constitutional center.

Dimmer now was the libertarian vision that had animated the justices in
Buckley
to condemn overregulation. Political contributions now had a bad name. This was ironic. As Stanford Law School Dean Kathleen Sullivan wrote in the
New York Times,
“Contributions to candidates and parties today do not line anybody's pockets, as they did in the heyday of machines like Tammany Hall. Vigilant media and law enforcement now nip improper personal enrichment in the bud, as politicians involved in the savings and loan scandals found out to their detriment. Political money today instead goes directly into political advertising, a quintessential form of political speech.”

But the Supreme Court wasn't convinced. The justices were determined to stay the course. The Burger Court had spoken in
Buckley;
the Rehnquist Court would not change direction.

Chapter Five

R
ELIGION IN THE
P
UBLIC
S
QUARE

B
RIDGET
M
ERGENS WAS NOT JUST ANOTHER STUDENT
at a large public high school. The vivacious sophomore at Westside High School in suburban Omaha, Nebraska, in 1987 wanted to start a Bible study group. Like other non-curricular organizations, her group would meet on school premises when regular classes weren't in session. Her group would exclude no one.

The school administration refused Bridget's request. A Bible study group meeting on campus, Bridget was told, would violate the constitutional separation of church and state. Bridget protested. She pointed to other student groups meeting on campus, such as the Chess Club. As she saw it, there was no basis for discriminating against a student group simply because it was faith-based. Guided by the school board's attorney, the Westside principal held firm.

Bridget decided to challenge her principal's decision in a federal lawsuit. As we'll soon see, she ultimately won her case in the Supreme Court. I had the privilege of arguing the case as solicitor general. I wanted the Court to get the answer right. In my view, Bridget should win.

Someone not familiar with our nation's church-and-state disputes might wonder why the idea of letting some public high-school students
meet on their own initiative
to study the Bible on campus could be controversial, much less a matter people would actually battle over in court. The explanation lies in our history, a history that involves the Warren Court in particular.

Religious liberty was, as one writer has called it, our first liberty. Nowhere in the original Constitution was there a provision supporting one church or another as the official one, as had been the practice in the Old World. Indeed, in a provision reflecting the nation's commitment to religious liberty, the Constitution explicitly prohibited a religious test for holding public office. Of course, a Bill of Rights was soon added to the original Constitution. And the First Amendment provides, in pertinent part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Note the beginning words: “Congress shall make no law….” Those who framed and ratified the First Amendment sought to limit only Congress, not the states. Congress was not to establish a national religion, nor was Congress to prohibit the free exercise of religion. But the states were free to do with religion as they wished. Some states still had official churches when the First Amendment was added, but by 1833 they had all been dismantled: The commitment to religious liberty proved too great to allow their continuation for very long. This commitment, however, was not understood to command the elimination of religion from public life. To the contrary, religion was widely seen, even by nonbelievers such as Jefferson, as necessary to the maintenance of a good society. Thus, as the nineteenth century wore on, religious activities and observances were commonly found in, and even sponsored by, government agencies, including public schools.

This was not to remain. In the twentieth century, as the nation's demographics began to change, pressure grew to eliminate or alter certain of these activities and observances. Some states and localities made changes on their own initiative. In other instances lawsuits were filed, and eventually cases wended their way to the Supreme Court. In 1940, the Court held that the First Amendment's religion clause, like its free-speech provisions, applies not just to Congress but also to the states. On the strength of that holding, the Court was able to consider
Minersville v. Gobitis
(1940). It was a poignant case. Two children whose family were Jehovah's Witnesses were expelled from the public schools of Minersville, Pennsylvania, because, being Witnesses who believed they should not bow down to a graven image, they had refused to salute and pledge allegiance to the U.S. flag—a daily routine required by the school board. The children's father sued, claiming that the state had violated the First Amendment's free-exercise provision by compelling his children's participation in the salute-and-pledge ceremony—against what their faith told them. By a vote of 8–1, the Court rejected the family's claim.

Only three years later, however, the Court, in one of its most celebrated cases,
West Virginia State Board of Education v. Barnette,
completely switched positions. The West Virginia board, having duly absorbed the Court's teaching in the
Gobitis
decision, mandated a daily flag salute in the schools, expulsion from school being the penalty for nonsaluting children and criminal prosecution the vulnerability for their parents. A Jehovah's Witness, Walter Barnette, objected to the flag salute on the same grounds as the Gobitis family had done in the earlier case. The federal court in West Virginia took it upon itself not to enforce
Gobitis
and told the school board that it could not impose its new mandate.

This was extraordinary. Federal district courts are duty-bound to obey the Supreme Court, whether they agree or not. Otherwise, the system of law would break down.

But this proved to be harmless error. For on appeal, the Supreme Court, by a vote of 6–3, agreed with the contrarian district court and (with largely the same membership) overruled its own decision in
Gobitis.
The Court attached less weight to
stare decisis
than to its obligation to answer the constitutional question correctly. Though
Barnette
was argued in terms of free exercise, the majority opinion by Justice Robert Jackson, who'd been appointed by FDR, took a broader First Amendment position that no one could be forced to salute the flag. Freedom of the mind, wrote Jackson, is what all Americans, schoolchildren included, have as a matter of constitutional right.

Gobitis
and
Barnette
were the Court's initial First Amendment journeys into the public schools. Then came one of the Court's most important decisions of the twentieth century. In 1947, the Court declined to condemn as unconstitutional the use of public funds to defray the costs of transporting pupils to church-related schools. The vote in
Everson v. Board of Education
was 5–4, but all nine justices agreed with the sweeping interpretation of the First Amendment advanced in the Court's opinion written by Justice Black, who was soon to be a mainstay of the Warren Court. Although upholding the bus-transportation program,
Everson
effectively denied the idea that religion has public value in a democracy. Citing the nation's founding history, Justice Black declared that the First Amendment does not allow laws that aid one religion, help all religions, or prefer one religion over another. Government, in sum, must be absolutely
neutral
toward religion. The First Amendment, Black explained, was intended to erect a wall of separation between church and state. The wall—a metaphor taken from a letter Thomas Jefferson, as president, had written to the Danbury Baptists in 1802—must be kept high and impregnable.

This ruling set the tone for the decades to follow, and it was this separationist wall that Bridget Mergens ran into many years later. Its blueprint was sketched in
Everson,
and over the years the Court built it up—high and impregnable. Briefly, we turn to how it happened.

In 1948, the Court in
McCollum v. Board of Education
adhered to
Everson
in a case involving public schools. Specifically, it struck down an Illinois school board's released-time program under which teachers from any religious group wishing to participate were allowed to offer religious instruction in the school for one hour each week. Justice Black wrote the Court's opinion, and only Justice Stanley Reed (an FDR appointee) dissented. An avowed atheist had challenged the released-time program, which the state did not fund but whose teachers it approved and supervised.
McCollum
marked the Court's first-ever invalidation of a state practice as an establishment of religion. Justice Black reaffirmed
Everson
by rejecting the school board's argument that the First Amendment, properly understood, forbids only government preference of one religion over another. Justice Reed, challenging the Court's understanding of First Amendment history, criticized the Court's reliance on Jefferson's wall metaphor: A rule of law should not be drawn from a figure of speech, he complained. But his view was swept away in the rising separationist tide.

In 1952, the Court in
Zorach v. Clauson
declined by a vote of 6–3 to strike down a released-time program from New York City. Here the religious instruction for public-school students was provided
off campus,
and the teachers in the program were not approved by the state. These facts distinguished the case, in the majority's view, from
McCollum.
Notably, in neither case were students compelled to participate in the programs at issue—the lesson of
Barnette
had been absorbed. But in
McCollum
the students had a right not to participate in the program; to exercise this right, they had to act affirmatively by asking to be excused. In
Zorach
the students had a right to participate; to exercise this right, they simply signed up. Thus, in
Zorach,
the burden of decision-making fell not upon non-participants but upon those taking the trouble to opt in to the program—a choice, in the Court's view, that was not coerced by the state.

It was also in 1952 that the Court turned away a taxpayer complaining about Bible reading in a public school, ruling that as a mere taxpayer he had no standing to bring such a case. Ten years later, however, the Court, with Earl Warren in his ninth year as chief justice, decided a case brought by plaintiffs with a true interest at stake: parents, as it turned out, of children in the New Hyde Park, New York, public schools. The state board of regents had composed a brief, nondenominational prayer for daily use in New York's schools. “Almighty God,” it went, “we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” The parents said that the prayer was an unconstitutional establishment of religion. The Court, with Justice Black applying the hard separationist doctrine he had announced in
Everson,
agreed by a vote of 6–1.
Engel v. Vitale
was the case, and it was followed the next year by
Abington v. Schempp,
an 8–1 decision. In his opinion for the Court, Justice Tom Clark extended
Engel
by striking down state-sponsored Bible readings and the saying of the Lord's Prayer in public schools.