Religion and the Law

Peculiar Religious Discrimination

A charter school seeking contractors to provide art instruction can't exclude companies just because their web site has religious references.

|The Volokh Conspiracy |

From Judge Otis Wright's opinion Tuesday in Our Peculiar Family v. Inspire Charter Schools (C.D. Cal.):

Plaintiffs are a religious, family-run business offering art instruction "to individuals ranging in age from nine to adult." Plaintiffs promote their art lessons on their website. "Although Plaintiffs express their religious identity in their website, the services they provide are nonsectarian." The following is one example of religious content on Plaintiffs' website:

"We have come to realize that our eyes see beauty that others sometimes miss. In that beauty we see purpose and meaning. From a decrepit old building or the many colors found on a rusty old car, to the barren stillness of our desert valley to a wondering child's face, we believe the world around us reflects the beauty and glory of its Creator."

Inspire operates charter schools throughout California, receives public funding, and "partner[s] with vendors in providing students with various products and services." Jones is employed by Inspire as the "Vendor Support Team Lead." "Vendors who are approved enter into a private contractual relationship with Inspire, but do not provide outsourced governmental functions as independent contractors." To be approved as a vendor, applicants must complete Inspire's application survey.

In August 2019, Plaintiffs completed one such survey, attempting to contract with Inspire to provide art instruction. Plaintiffs then received an email from Jones rejecting the application, stating "the services appear to be religious in nature or have religious inclinations." After Plaintiffs asked for clarification, Jones responded that the "decision was based upon the content included on your website." He continued: "All services and content on websites must be secular in nature for a vendor to be eligible for enrichment funds."

After Plaintiffs requested clarification concerning what content was preventing approval of their application, Jones advised that Plaintiffs must remove Bible verses and references to "the Creator" on their website to have their application approved. Jones later advised that "[i]f all services are secular and [i]f you were willing to remove this content from your website, we could continue the approval process." ….

Plaintiffs' version of the facts, taken in a light most favorable to Plaintiffs and reading the [Complaint] liberally, sets out a violation of Plaintiffs' First Amendment rights.

Plaintiffs applied to provide nonsectarian art instruction to Inspire and Jones rejected that application due to religious content on Plaintiffs' website. Jones then conditioned Plaintiffs' eligibility to contract with Inspire on removing this content from the website, regardless of any potential impact the content may have on Plaintiffs' art instruction.

Defendants maintain that denial of Plaintiffs' application was permissible due to California Education Code section 47605(d)(1), which provides in part: "In addition to any other requirement imposed under this part, a charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations." In other words, Defendants argue that their obligation to be "nonsectarian" in administering a school program required them to exclude any vendor that publicly espoused religious views. Defendants are incorrect. Trinity Lutheran Church of Columbia, Inc. v. Comer, (2017).

In Trinity Lutheran, Missouri instituted a nonprofit grant program to replace playground surfaces. Missouri's Department of Natural Resources had a "strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity." Id. Missouri thus denied Trinity Lutheran's application solely because it was a church. The Supreme Court concluded that Missouri had violated the Free Exercise Clause of the Constitution because it had expressly discriminated against Trinity Lutheran based on its status as a religious organization. The Supreme Court concluded, "the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand."

Defendants' policies here are even more preclusive than the unconstitutional policies in Trinity Lutheran. Not only do Defendants' policies exclude all churches from providing services, they apparently preclude all services by any potential vendor with religious statements on their website. Defendants do not explain how institution of such a categorical requirement is in keeping with their obligation to facilitate "nonsectarian" services, nor do they offer facts to support that Plaintiffs' application implicated Establishment Clause concerns.

Instead, without addressing controlling Supreme Court precedent or offering authority of their own, Defendants maintain that by allowing Plaintiffs "to become an approved vendor without modifying its website to remove sectarian references, Inspire could potentially be favoring plaintiffs' religious views in violation of the No Preference and Establishment Clauses." The Supreme Court in Trinity Lutheran rejected similarly vague citation of religious establishment concerns, stating that "[i]n the face of the clear infringement on free exercise before us, that interest cannot qualify as compelling." And like in Trinity Lutheran, the policy here "expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character" and therefore "imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny." …

I think the charter school could require that contract art teachers not include religious messages in their lessons; the teachers would be viewed as speaking on the school's behalf, and could be told by the school to teach the way the school wants. But the school can't exclude such teachers because their out-of-school speech is religious.

NEXT: Holmes and the Art of the Skewer

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  1. I don’t quite understand. Charter schools are subject to the first amendment? The amendments only pertain to Congress and the states (Congress shall make no law …). Yes charter schools are publically funded, but are all publically funded organizations subject to the bill of rights? That seems wrong to me.

    1. That was my initial thought too. The chief difference between a public school and charter school is that it is privately run. I can see an argument that it is acting as agent of the state, but that seems to run against the entire purpose of charter schools.

      1. I appreciate the argument, and charter schools in some states are indeed treated as private actors (I think it turns in part on how they interact with government entities under state law). But in this case, the defendants expressly argued that Inspire was a “public school” and Inspire’s manager who made the decision was a “public official,” and thus didn’t argue that there was an absence of state action — the question didn’t even come before the court.

    2. Let’s flip it around. Do you really want the government to be able to circumvent the Constitution merely by outsourcing it’s duties and responsibilities?

      Yes, all publicly funded organizations are, to some level, subject to the applicable clauses in the Constitution. Public schools are an arm of the state with compulsory attendance. Private schools are free from most of those restrictions. Charter schools sit in the middle. But the stricter the regulations governing the charter school, the more likely they are to be held to public school standards. As the article above shows, California’s regulations of charter schools are quite strict – enough that the constitutional distinction between public and charter is negligible.

    3. The term “charter school” means different things in different places.

      Some states use the term for schools that other places might call a “magnet school” …. given some academic independence, created through a process other than a school district top-down decision, and not having a monopoly over a geographic district; but the teachers and administrators are state employees and part of the state retirement system. If the administrator who denied the contract was a state employee wouldn’t that be sufficient to trigger the First Amendment?

  2. Wow…

    What next. “We’re sorry, we can’t pay you because that would use US dollars, which reference God on the bills. We’re non-sectarian, and couldn’t possibly use anything with religious references, so you can’t be paid”.

    1. The obvious solution to that one is to remove In God We Trust from the money. The broader issue, though, is that neither side seems to understand that the First Amendment has two parts: The government cannot give religion favorable treatment, but neither can it discriminate against religion.

      1. Why can’t the government give religion (in general) “favorable treatment?” (IE having certain laws not apply to religious organizations)

        1. Exempting religious organizations from laws can be less entangling than not exempting them, especially with things like taxes, where failure to pay can lead to seized churches, which directly impacts the exercise of religion. We’re seeing similar arguments at the moment with respect to lockdowns. But there’s a big difference between holding a service which can kill, and denying government a little bit of revenue.

          1. “holding a service which can kill” is doing a lot of heavy lifting here.

            The right to freedom of religion is not unlimited. You, for example, could not practice human sacrifice legally as “part of your religion.”

            But that’s not the case here.

            Alternatively, you could say that “driving is an inherently dangerous activity that leads to tens of thousands of deaths in the US every year (More than 38,000). Since most people drive to church, church services are “inherently dangerous” and “holding a service” could kill people. And under that logic, you could ban church services. Because they can “kill”.

            Of course, that would severely impact freedom of religion. It’s just an amendment to the constitution, though, right?

            What is your response to such an argument?

          2. “…where failure to pay can lead to seized churches, which directly impacts the exercise of religion.”

            I’m not sure I follow. The taxes “impact[] the exercise of religion” too. Under your theory why wait? If churches aren’t constitutionally entitled to not pay taxes, they’re not constitutionally entitled to avoid tax lien foreclosures, either.

            1. “The power to tax is the power to destroy” (Chief Justice John Marshall)

        2. “Why can’t the government give religion (in general) “favorable treatment?” (IE having certain laws not apply to religious organizations)”

          Similarly, why can’t government give religion (in general) unfavorable treatment?

          This question may become more important to some people if religion continues to diminish in American life and religious voters become less influential in the American electorate.

          Religious claimants currently have enough influence to benefit from a ‘heads we win, tails you lose’ approach — religious claimants can discriminate against others, but others can’t discriminate against religious claimants. If that influence continues to fade, are religious claimants prepared to live in a ‘heads we lose, tails you win’ world?

        3. Armchair Lawyer, because the text prohibits an establishment of “religion”. Not merely an establishment of a particular religion, but religion itself. And because doing so would disadvantage millions of Americans who are not religious, but who nevertheless see their government establishing an ideology at variance with their own beliefs.

          I’m sure you would be unhappy if the government provided more favorable treatment to the American Atheists Organization. Why should American Atheists be any less unhappy if the government provides more favorable treatment to religion?

          1. John Adams’ father was a minister — he’d never have agreed to that.

            1. And of course we all know that no sons of ministers ever leave the faith.

              The more pertinent question is why should the government give more favorable treatment to *any* belief system, religious or not? My view is that for purposes of public policy, religion is just another belief system, and as such, it should neither be favored nor discriminated against. If you think your belief system should be more equal than others, I think the burden is on you to demonstrate why.

              1. John Adams, if I recall correctly, overcome childhood indoctrination in this regard and chose reason.

          2. The government already provides favorable treatment to the AAO. And I’m fine with it. They have their beliefs, and should be allowed to practice them as they wish, with minimal government interference. Even if it exempts them from certain laws.

          3. Technically, the text prohibits any law on the subject of an establishment of religion. The thing a lot of people don’t get today is that “an establishment of religion” was a state church, like the Anglican church in England.

            Several of the states had them at the time, they didn’t want the federal government establishing it’s own church, or messing with their’s. Thus the whole topic of establishments of religion, state churches, was placed off limits.

            Churches are actually protected by the free exercise clause, not the establishment clause.

      2. I’ll be happy to dispose of any dollar bills that offend you… “)

  3. As someone who thinks all religions have nothing to do with GOD (or God or G*d or whatever), and are instead a method people use to control other (usually weak-minded), people, I completely agree with the ruling.

    Religious people/organizations can still be useful for secular reasons – even if they’re batshit crazy.

    I wonder. . . does Our Peculiar Family have to pay taxes on this income.

    1. Thank you for your shortsighted and quite bigoted views.

      And from experience, religious people are some of the most strong minded people I’ve ever known.

      1. You’re incorrectly equating “strong minded people” with “weak minded people who can’t resist religious indoctrination.”

      2. “And from experience, religious people are some of the most strong minded people I’ve ever known.”

        In my experience, the ‘strong-mindedness’ associated with gullibility constitutes brittleness, not strength.

      3. “And from experience, religious people are some of the most strong minded people I’ve ever known.”

        Well I’m persuaded.

    2. As someone who thinks all blogs have nothing to do with their stated purpose or content, and are instead a method people use to indoctrinate other (usually weak-minded) people, I think that everyone who comments on a blog is crazy.

  4. “I saw that plumber going to church Sunday, so he can’t work on the toilets in the county courthouse.”

    1. ‘That restaurateur serves bigot chicken for Jesus and attends my church, so his sandwiches (and no other restaurateur’s food) will be offered at the high school football and basketball concession stands.’

        1. Does Chick-fil-A serve dark meat?

          Seems mostly, if not entirely, white to me.

          Which likely is how their target audience likes it.

          1. Haven’t you heard? God’s Chicken has gone woke and is quickly losing favor among us Normals.

          2. I actually prefer dark meat, but it really isn’t well suited to chicken sandwiches in a fast food environment, which is why everyone uses breasts.

      1. If “that restaurateur” got the contract, then yes….

        That’s why people bid on them….

  5. “From a decrepit old building or the many colors found on a rusty old car, to the barren stillness of our desert valley to a wondering child’s face, we believe the world around us reflects the beauty and glory of its Creator.”
    Such terrifying indoctrination, must go. Those impressionable minds are needed for more serious group-think.

    1. Were it taught in the classroom, it would indeed have to go. (Note that it’s just on their website, which is why this case is a pretty easy one IMO)

      You think it’s fine; I think it’s fine; we don’t get to decide on behalf of every parent that it’s fine.

      That’s the opposite of groupthink.

  6. Well, after all, a certain mask mandate exempts certain races, why can’t any other law exempt certain religions. All religions have been discriminated against at some point.

    1. All religions have discriminated (heretics, heathens, sinners, etc.), at some point.

      FTFY

      1. true both ways; one applies here.

  7. Oh boy I bet this is going to piss off the Liberals. They hate Christians and want to destroy them in every way possible.

    1. Sam, I don’t hate Christians. I’m married to one. I just don’t think Christianity, or any other religion, is entitled to favorable treatment by the government.

      1. apropos comments from another thread:

        mad_kalak
        June.24.2020 at 5:44 pm
        I think that is it a big problem that people, such as yourself, don’t understand that our collective morality is reflected in law through the democratic process. Clearly, there is overlap between secular morality and religious morality. A democratically passed law doesn’t necessarily mean that a religion is being forced on the secular, nor likewise secular morality being forced on believers.

        Moreover, even if the moral motivation behind a law is religious in nature, the fact is that religious believers have every right to try to affect the democratic process. Indeed, if they don’t, the democratic process of lawmaking is bent against them.

        Sebastian Cremmington
        June.24.2020 at 7:19 pm
        The best example is the fact Christmas Day is a federal holiday. So the day is a holiday not because the federal government wants people to celebrate Christmas…it is simply an acknowledgment that the vast majority of Americans are Christians or from Christian families that celebrate Christmas. Although when it was passed I bet it was because Congress wanted people to celebrate Christmas so had some douchebag challenged it then maybe it could have been declared unconstitutional.

        1. mad_kalak, the mere fact that Christians believe, for religious reasons, that murder is immoral does not mean that the State can’t criminalize murder. Nor does the strong probability that at least some of the legislators who voted to criminalize murder did so out of religious belief mean the State can’t criminalize murder. Because laws against murder also serve a non-religious function. There are perfectly fine utilitarian reasons to ban murder. And because the law serves a non-religious purpose means there’s no First Amendment problem.

          Christmas is a bit unique because at this point it has morphed into a cultural holiday. Most of the bad Christmas music played over shopping mall PA systems is completely non-religious; you are more likely to see displays with Santa and his reindeer than you are manger scenes. Just as many people, myself included, celebrate solstice as celebrate Christmas. So I’m not inclined to get too upset about Christmas being a federal holiday, and I think my fellow unbelievers who do get upset about Christmas should find worthier things to get upset about.

          In the meantime, if you’re looking for a new song to sing at Christmas, I offer the following:

          God rest you Unitarians, let nothing you dismay
          Remember there’s no evidence there was a Christmas day
          If Christ was born is just not known no matter what they say
          Old tidings of reason and fact, reason and fact
          Old tidings of reason and fact.

          There was no star of Bethlehem, there was no angel song
          There could have been no wise men, for the journey was too long
          The stories in the Bible are historically wrong
          Old tidings of reason and fact, reason and fact
          Old tidings of reason and fact.

          Much of our Christmas custom comes from Persia and from Greece
          The solstice celebrations of the ancient Middle East
          We know this so-called holiday is but a pagan feast
          Old tidings of reason and fact, reason and fact
          Old tidings of reason and fact.

          1. I will stick with Silent Night, Holy Night and Jingle Bells, and I don’t have the patience to argue with every atheist type who spouts pablum about Christian customs. Suffice to say, that it takes more faith to believe that there isn’t a god than that there is.

            Still, you’re missing the point. Religious and non-religious types have every ability to try to influence the democratic process through legal means. Success by religious types in this endeavor should be no more noteworthy than dog bites man.

            1. “Success by religious types in this endeavor should be no more noteworthy than dog bites man.”

              Page 5: Dog bites man.
              Page 6: Texas Legislature enacts Shariah Law.

              1. Shariah Law? Well, if Mohammadians manage it via the democratic process, good for them. They can’t though, because people don’t want it, but it’s theoretically possible the same way it’s theoretically possible that there will be another Great Awakening.

                I’ve always said to my more rightist friends, that the Left serves a purpose. With regards to Islam, the ones over in the West will be sucked into the whirling vortex of western hedonistic post sexual-revolution consumerism and within a generation or three. Before long, they will have lesbian feminist Imans who would throw out half the Koran and replace it with Yoga therapy.

                1. Page 5: Dog bites man.
                  Page 6: Texas Legislature criminalizes practice of Islam.

                  1. All of Islam, or only portions of it? Which aspect of Islam should we allow: child marriage, plural marriage, Jizya, killing Jews? Theoretically, it’s no different from banning anything for secular reasons.

                    Do you think that’s a witty comeback? What’s you’re point?

                    1. My point is that you’re wrong about the Texas Legislature banning the practice of Islam (or mandating it) being a dog-bites-man story.

                      The entire discussion is a shell game. Religious people can advocate for legal policies that happen to comport with their religious beliefs. That’s unremarkable. They can’t advocate for their religious beliefs on the basis of their religious beliefs, constitutionally. And they shouldn’t be able to–that is government should never submit to such whims–normatively, because religious beliefs never provide justifiable grounds for anything. The defining characteristic of a religious belief is that it’s not persuasive to anybody who doesn’t already share your beliefs, and can only rest on unproven things. That’s why religious people retreat to “faith”.

                    2. I’m pretty sure you agree they can advocate on any basis (freedom of speech). So perhaps you meant that a law, passed on the basis of a religious belief, should be found unconstitutional. But, what if there is a separate, unstated plausible secular rational basis that may even be discovered after the fact?

                    3. I think the law should be upheld. Standard low. Rational basis.

                    4. OK. But in that case, what does [t]hey can’t advocate for their religious beliefs on the basis of their religious beliefs, constitutionally mean?

                    5. Josh R…I share the same question you have.

                    6. It means that if the only support for a law is religious argument, it can’t withstand rational basis scrutiny.

                    7. I think that is correct. But as a practical matter, that is not a limitation because there will always be a secular rational basis.

            2. Well, I’ve noticed that the less actual evidence there is for a proposition — in this case, the existence of God — the more insistent its proponents become that those demanding evidence are faith-based. What, exactly, do I have faith in to disbelieve the existence of God?

              Yes, religious types have every right to try to influence the democratic process, but the First Amendment means that certain types of laws — those favoring religion, for one — may not be passed.

              1. You have a misunderstanding of the First Amendment’s establishment clause that I’m surprised a regular reader of this blog has. SCOTUS jurisprudence may not be what you want it to be on this subject, but still, there it is warts and all, because through the appointment process, stemming from the democratic process of elections, religious influence has made it so.

                As for your first point, it takes more faith to believe that something comes from nothing than not.

                1. Who says it came from nothing?

                  I don’t doubt that the courts, including the Supreme Court, are becoming more favorable to religion, but the text says what it says. If through “the appointment process, stemming from the democratic process of elections,” there emerged on the Supreme Court a majority for overturning Heller and holding there is no private right to gun ownership — Chicago can now ban all guns — would the text have changed, or would the makeup of the Court have changed? Same issue here.

                  1. Has the Court ever held that a law which favors religion categorically violates the Establishment Clause?

                  2. Heller’s “individual right” interpretation of the 2A was a several decades in the making. It took a long time to for the scholarship, elections, and judicial appointments, to bear fruit. It was an effort reversing the “communal right” interpretation that likewise took decades creeping in. What’s ironic, is that Heller was just a reversion to an earlier understanding of the 2A, which is why the scholarship was so citation heavy with Founding Era/14th Amend. era material.

                    As for our metaphysics debate, can something come from nothing?

                    But if your point is that the appointment process brings the court in line with the elected branches, that’s what I already said, and people have been saying that since Tocqueville and Hamilton.

                    1. My point is that the Court’s current swing to the right, including increased support for religion, has more to do with politics than with Constitutional law. (It’s not even a reflection of the political majority since without that anti-democratic electoral college Al Gore and Hillary Clinton would have been making the appointments.) If and when Heller is overturned, that, too, will be more about politics than about Constitutional law. But I’m arguing what I believe the law to be, whether or not the Supreme Court agrees with me, and I doubt that you always agree with the Supreme Court either.

                      As to metaphysics, so far as is known at this time something cannot come from nothing, although I read particle physics for pleasure and I would not bet the rent that that’s cast in concrete. However, since we don’t know what, if anything, preceded the big bang, we don’t know that it did come from nothing. There’s one theory, with some evidence, that the universe expands and contracts, expands and contracts, over and over again, and the last big bang was merely the beginning of the most recent expansion.

                      Since we don’t know what preceded the big bang, you have no real evidence that something did come from nothing. Also, there are some physicists who reject the big bang and subscribe to steady state, so the big bang isn’t even unanimous.

                    2. So, that convoluted explanation that didn’t explain anything of what you sorta think but are not sure, is exactly why, my confrere, that it takes more faith to think that that isn’t a god than their is one (even if it is just a watchmaker god).

                      The Courts are supposed to be the least dangerous branch. I wasn’t suggesting otherwise. We agree with each other, whether you realize it or not. I think you were reflexively being contrary due to the other topic in the exchange, and because of your general lefty-ness. I suggest you read Federalist 78.

                    3. Unlike religion, science has no prophets and no revealed truths. All we have is the evidence that’s available to us, which often contains gaps. And science is only as good as the last piece of evidence that’s come in.

                      You haven’t shown that under my world view, something did come from nothing. Actually, since there’s no good evidence in either direction at this point, my world view is silent on the question for now. (Unperformed experiments have no results.) When you have some actual evidence that absence of a deity does indeed require that something have come from nothing, get back to me. Until then, you’re arguing a straw man.

                    4. “As for your first point, it takes more faith to believe that something comes from nothing than not. . . . As for our metaphysics debate, can something come from nothing?”

                      The first part is nonsense, because it purports to quantify the amount of “faith” necessary to believe one of two unprovable premises: (1) that things can come from nothing; (2) that they can’t.

                      But let’s engage. You’re making the cosmological argument, which is something like:

                      P(1) All things that exist were created by something.
                      P(2) There are things that exist.
                      P(3) Therefore the things that exist were caused by something.
                      C: There must be a thing that caused all the other things that exist.

                      Note that the argument is logically inconsistent; P(1) denies the conclusion. It can only be salvaged through special pleading for the first cause. The thing that you posit exists in the conclusion (a something that precedes nothing) is itself preceded by nothing.

                    5. There is a fallacy called Scientism. “Science” certainly does have it’s prophets and preachers and received wisdom. Folks like Richard Dawkins have successfully converted tons of people. And really, “science” is merely a process of knowledge acquisition that you are putting your faith in. Yes, your faith. And no matter how hard you try, you can’t get values from facts. So try as you might, you’re back where we started. That is, using collective morality to determine right and wrong.

                      I don’t have to show anything about your world view or not to affirm the proposition. All I have to show, is that it takes more faith to believe that causality doesn’t exist than than it does. Denying causality goes against the entire sum of human experience. Therefore, that takes more faith than thinking causality does exist. QED.

                    6. @mad_kalak,

                      QED is typically reserved for mathematical proofs or philosophical arguments. Yours is neither, since it relies on “human experience.” Hume dispatched that argument centuries ago. That’s not a priori reasoning, because you have no a priori basis for thinking that just because things happened some way in the past, they will continue. (You know that only because that’s how it worked in the past.)

                      Set that aside. I’m not the one arguing that “something can come from nothing” at all. The cosmological argument presumes that it is the case that something (God) can come from nothing. There are a lot of philosophical rejoinders (non-theistic cause) and physical explanations (big bang) none of which interest me.

                      “And no matter how hard you try, you can’t get values from facts.”

                      This can’t be true. People develop moral arguments from hypotheticals, and the hypotheticals themselves borrow from facts (however defined). Murder is wrong because it interferes with autonomy. Why does that matter? Because of the fact that I care about my own autonomy.

                      But if you’re right, you’ve denied religious morality as well. It depends on facts, too, about somebody living, rising from the dead, saying some shit, receiving the word of God, etc. Christian ethics are based on alleged facts about the world.

                    7. Mad kalak, where are you getting the idea that atheism requires either a denial of causality or a belief that something comes from nothing? Before we even get to what requires more faith, you first have to show that I believe what you’re claiming I believe.

                      It’s as if I were to claim that Republicans believe in reincarnation so it takes lots of faith to be a Republican. Your first response would be who says Republicans believe in reincarnation. Well, who says atheists deny causality or believe that something comes from nothing?

                    8. “What’s ironic, is that Heller was just a reversion to an earlier understanding of the 2A, which is why the scholarship was so citation heavy with Founding Era/14th Amend. era material.”

                      Right, back when they wrote the NFA, they clearly understood that they couldn’t ban guns, which is why it was just an outrageously high tax. And there’s never been a time when most people didn’t understand the 2nd amendment to guarantee an individual right.

                      The “collective right” interpretation was a sort of fad or fashion that overtook the legal community for a few decades, nothing more.

            3. Jingle Bells is not a Christmas song, it’s a Thanksgiving song.

  8. It seems important to me whether the religious content on the web site is part of the curriculum, or just a part of the company’s general internet presence.

    Will students using the material have to access it through a web site with religious messages, or is the material accessed directly?

    Another question I have is what is meant by “art instruction” here. Is it things like classes in painting and drawing, or is it art history?

    Religious themes are everywhere in art. You’re going to have a hard time discussing European painting without talking about Christianity and the Bible. So you do have to be careful how this material is presented.

    1. A huge part of European painting is mythology too, and there are plenty of pagans these days, and literal Odinists.

      The thing is, to understand the Pieta, you have to talk about what Christians believe. It is possible to do this and not be an advocate for Christianity, but I think the issue the school administrators have, is that any mention of Christianity is seen as proselytizing.

    2. The problem was not not letting them teach christian ideas. The problem was the blanket ban on the company for some irrelevant lines on the website. If the school had made an argument like you’re making it would be way less clear cut of a case.

      1. Well, that’s what I’m asking.

        Presumably some of the content is accessed through a web site. If that site – as opposed to the company site – contains the religious content, which appears to be more than “some irrelevant lines,” then I agree with Inspire. Otherwise not.

        It’s as if one of the Conspirators, here or on a personal site of some kind, expressed ideas reflecting a strong religious faith. Fine. But don’t include it in your lectures or course materials.

  9. One wonders if the school bans any one for exhibiting any religious tendency? Can teachers not wear a necklace of a cross or a star of David or a Crescent?

  10. If a nominee to the federal bench concluded an interview by opining that stare decisis is a powerful rule with one practical exception — ‘scripture directly on point, obviously’ — how should that answer influence the candidacy?

    If the comment appeared not during a nomination-related interview but instead on the candidate’s personal website, would that change the analysis?

    1. The premise of your hypothetical is clearly can some people set aside their personal beliefs and adjudicate cases based upon the facts and the law.

      We can clearly see the answer to your begged question with all the “Preserve SCOTUS Apolitical Reputation By Being Exceedingly Political”, “Living Constitution”, “Empathetic Latina”, and “Closeted Lesbian but won’t Recuse Gay Marriage Case” types that religiosity is not required to ignore facts and laws when judging cases.

      1. It is less hypothetical that you understand, Sam.

        1. “We can clearly see the answer to your begged question with all the “Preserve SCOTUS Apolitical Reputation By Being Exceedingly Political”, “Living Constitution”, “Empathetic Latina”, and “Closeted Lesbian but won’t Recuse Gay Marriage Case” types that religiosity is not required to ignore facts and laws when judging cases.”

          This part of my comment demonstrates my understanding.

  11. It is unfortunate that the establishment clause has led to schools being aggressively atheist, much to the detriment of our children. Unfortunately, there exist two Supreme Court justices who maintain that religion should be outlawed entirely.

    1. How much superstition is the proper dose of superstition in a legitimate school, jubulent?

      How much suppression of science and reason to flatter religion should be enough to make a school ineligible for accreditation?

    2. How are public schools “aggressively atheist”? Do you have any examples that you’re thinking of?

      Failing to promote or demote any religion is not being “aggressively atheist” – it is merely leaving the student’s religious “education” (or lack thereof) up to their parents.

      In some cases, mostly history (including art history), it’s necessary to mention religious influences of the relevant era and culture so the student can understand the topic. However, there is no reason to pass judgment on if the views underpinning those religions are “correct” or “incorrect” and doing so would inevitably promote or demote one or more religions.

      Being “aggressively atheist” means promoting the notion that there is no supernatural power – not merely failing to proselytize about any religion.

      A school can teach about Greek and Roman gods and religious beliefs of those cultures, Native American gods and the religious beliefs of those cultures, the Abrahamic god and associated religious beliefs, Scientology, and Pastafarianism without passing judgment on if there is any reason to believe or not believe in any of them and failing to promote one or any of these is not “atheist”, let alone “aggressively atheist”.

      Similarly, failing to mention Creationism in a biology class is not “atheist”, let alone “aggressively atheist”. Generally, except in response to a student question, bringing up Creationism in such a class is likely promoting or demoting one or more religions and would be inappropriate. If a student asks “What about Creationism?”, a proper response would be “This is a science class and there is no accepted scientific support for Creationism. As well, different religions have different interpretations and understanding of Creationism. Hence, we will not be discussing Creationism in this class. Next question please.” Such a response is also not “atheist”, let alone “aggressively atheist”.

  12. aggressively atheist

    I’m…not sure if you know what that means?

  13. Glimmers of hope for religious tolerance from the intolerant secularist.

  14. By the way, the link to the decision just brings me right back here.

    1. That’s true originalism.

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