The Volokh Conspiracy Archive

My new essay in Civitas introduces novel research about the understanding of the Establishment Clause in 1868. I dug through recently digitized archives of the Freedmen Bureau. In short, a federal government agency, headed by military chaplains, worked with religious groups to establish schools in the South, and the curriculum in those classes included bible readings and prayers.

Here is an excerpt:

The regulations for Freedmen schools in Texas provided that classes would begin at 9 A.M. and "[t]he morning Exercises will commence with either the singing of an appropriate hymn, or prayer, or the reading of the Scriptures." For Louisiana Freedmen schools, each day, "[t]he opening exercise in every school will be the reading a passage of Scripture or a prayer in place thereof." After prayers, the students would sing "an appropriate hymn or melody." The Freedmen school in Bainbridge, Georgia opened the day by reading one chapter from the Bible. The Freedmen school in Mobile, Alabama opened each day with a "divine service, which exercises consist of reading short selections from the Bible, after which the school repeat[s] the 23rd Psalm." (It begins, "The Lord is my shepherd. . . .") "Then all kneel, when a short prayer is offered by some designated teacher, at the close of which all join in the repetition of the Lord's prayer, when the exercises are concluded by singing . . . "

In February 1868, a teacher at the Clinton's Freedmen's School in Tennessee reported to the Freedmen's Bureau that "the prayers of the pupils is [sic] encouraging." In October 1868, Dellie Gordon, a teacher at a Sabbath School in Prince George's County, Maryland, wrote to Rev. John Kimball, the Superintendent of District of Columbia Schools. Gordon relayed that she "opened school on Sunday afternoon and recited the Ten Commandments which, the children had never heard before." Gordon added that "with explaining the 2nd chap St. Matthew the afternoon passed very pleasantly." (This chapter discusses Jesus's birth and early childhood.) . . .

The purpose of teaching scripture was not merely to promote literacy. The Bureau recognized a close connection between teaching religion and promoting morality among the families of recently freed slaves. In October 1866, the Superintendent of Schools for Alabama wrote that "[e]ffort has been made to supply the moral and religious wants of the freedmen as far as possible" through the donation of 2,000 Bibles from the American Bible Society. The report observed that "portions of the Holy Scriptures find their way to households which, probably, would be reached in no other way." Another report from Alabama explained that "[e]ffort has been made to supply the moral and religious wants of the freedmen as far as possible." General O.O. Howard, the Commissioner of the Freedmen's Bureau, and the namesake of Howard University, was told that teachers "explain[ed] the lessons of morals and christianity, so strikingly presented in every page of the Bible."

The schools also engaged in outright proselytization. Teachers at American Missionary Association schools for Freedmen in Alabama were required to fill out a monthly report with questions about conversion: how many Bibles were distributed? How many families were "engaged in religious services, either by reading the Scriptures, singing, or prayer"; how many "hopeful conversions, if any, during the month"? One report from the Girard Freedmen School reported nine hopeful converts. . . .

The Freedmen schools, which were managed and funded by the federal government, proactively incorporated the Bible into the curriculum. Students began their day with prayer, read from the bible, and teachers were encouraged to proselytize. These actions were viewed as a critical way to develop morality among the freedmen. This history from the Second Founding should inform how the Establishment Clause would have been understood when the Fourteenth Amendment was adopted.

I have published here only a small bit of my research. The full load will come in a forthcoming symposium article. I encourage others to follow this path, and see what else comes up.

The Baltimore Rock Opera Society fired its recently hired executive director, allegedly because she was wearing her hair in cornrows and thus engaging in supposed cultural appropriation. The concern wasn't that cornrows were seen as unprofessional as such, but rather that a white woman was wearing a hairstyle that is seen as culturally black. (Katie Herzog at Blocked and Reported has a very good new podcast episode on this.)

Such a firing, I think, is illegal under federal antidiscrimination law, though it's possible (but not certain) that BROS may have a First Amendment defense, given the particular job that the woman held.

[1.] The gender identity discrimination precedent: The key precedent here is Harris Funeral Homes v. Stephens, the trans companion case to Bostock v. Clayton County. In those cases the Court held that gender identity and sexual orientation discrimination is sex discrimination, and therefore banned by the Title VII prohibition on sex discrimination. Here's the key part of the logic behind that argument:

I wrote in 2018 about a forged U.K. court order, quoting a Times (London) article (Billy Kenber):

Last week two fake documents were sent to Google in an attempt to censor a Times article revealing concerns about an online pharmacy run by an alleged internet spammer. The documents, including an order which purported to be from the UK Supreme Court, were sent to the tech giant in an attempt to get the article removed from its search result.

The "de-indexing" request was submitted in the name of Mason Soiza, 24, the owner of UK Meds, although he denied making the request. It comes amid concerns about how businesses, individuals and law firms are using takedown requests to remove damaging information from searches. At least 75 fake court documents have been sent to Google, according to a US academic….

Mr Soiza, who has emailed The Times to ask for the newspaper to "de-index" the article about him, said he had not created the forged documents or submitted them to Google. He said they were "100 per cent not sent by me" and added that they "look awful".

10/13/1890: Justice Samuel Miller dies.

From Hoover's post today (and see also our colleague John Cochrane's post about Hall's work):

Robert E. Hall, the Robert and Carole McNeil Endowed Professor in Economics and Senior Fellow at the Hoover Institution, Emeritus, and emeritus professor of economics in the School of Humanities and Sciences, is the recipient of the 2026 Nobel Memorial Prize in Economic Sciences.

Hall was recognized with the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel for his contributions to the "microeconomic foundations of macroeconomic stabilization," alongside economist Michael Woodford, with whom he will share the approximately $1.2 million prize.

"Robert E. Hall and Michael Woodford are awarded this year's prize in economic sciences for demonstrating how economic models could be reconstructed to revitalise stabilisation policy," according to an announcement from the Nobel Committee. "Rather than basing the models on statistical links between macroeconomic variables, such as inflation, production and consumption, they chose to build them on a microeconomic foundation. This encompasses an understanding for how the total mass of individual households and businesses affect the economy through their actions."

"This is a wonderful surprise," Hall said on Monday morning. "I've spent my career trying to understand how the economy works, following interesting questions wherever they led. When I thought I had a new idea, the next step was to find out whether it was actually new, whether it was right, and whether it mattered. I've been fortunate to have extraordinary colleagues and coauthors to help me sort that out, and working with them has been the greatest pleasure of my career."

Contemporary controversy over Columbus Day tends to focus on Christopher Columbus himself, and in particular on the treatment of Native Americans that followed European colonization. Somewhat lost in the controversy is why Columbus Day became an important American holiday in the first place: in significant part, it was a response to the severe discrimination faced by Italian immigrants.

The relevant history begins with large-scale immigration of Italians to the United States in the late nineteenth century. Italians, especially Sicilians and other southern Italians, were widely viewed as culturally and otherwise inferior, prone to criminality, and incapable of assimilating into American society.

The most infamous manifestation of anti-Italian hostility occurred in New Orleans in 1891. After Police Chief David Hennessy was murdered, a group of Italians was prosecuted for the crime. The trial failed to produce the expected convictions. On March 14, 1891, a mob broke into the jail and killed eleven of the Italian defendants and prisoners. Some had been acquitted and others had not yet been tried. The Italian consul described them at the time as "defenseless Italian prisoners."

The lynching caused a major diplomatic crisis. Italy withdrew its minister from Washington, and in April 1892 the Harrison administration paid 125,000 francs to Italy for distribution to the victims' families. Secretary of State James Blaine expressed the hope that this would end the dispute and restore friendly relations between the two countries.

Six months later, on the four-hundredth anniversary of Columbus's arrival in the Americas, President Benjamin Harrison proclaimed a nationwide Columbus Day observance.

Harrison did not invent the idea of celebrating Columbus. Americans had commemorated Columbus long before the 1890s, and the four-hundredth anniversary would have been a major event regardless of the controversy over Italian immigration. So it would be too strong to say that the New Orleans lynching caused Columbus Day.

But the connection between the rise of Columbus Day and the status of Italian Americans is nevertheless important. Columbus provided Italian immigrants with a particularly useful American hero. At a time when Italians were commonly portrayed as undesirable foreigners who could never become real Americans, Italian Americans could point out that an Italian stood at the traditional beginning of the American story.

Italian-American organizations accordingly made Columbus celebrations a major vehicle for ethnic pride and assimilation. In New York, Italian Americans raised the money for the Columbus monument at Columbus Circle, dedicated in October 1892. Columbus Day parades combined Italian ethnic pride with conspicuous displays of American patriotism.

Anti-Italian prejudice, meanwhile, continued well beyond the 1890s. Immigration restrictionists commonly portrayed southern Italians as inferior and inherently prone to criminality, and the immigration restrictions enacted in the 1920s drastically reduced Italian immigration.

Columbus Day gradually became institutionalized. Franklin Roosevelt established an annual federal Columbus Day observance in the 1930s. Italian-American organizations then spent years lobbying to make it a federal holiday. Congress finally did so in 1968 as part of the Uniform Monday Holiday Act. The National Archives' history of the legislation specifically notes that making Columbus Day a federal holiday had been "a goal sought for years by Italian-American groups."

None of this tells us what to think of Columbus himself. There is much greater awareness today, appropriately, of the terrible treatment of Native Americans following European colonization. But that increased awareness has tended to obscure a very different part of the history of Columbus Day.

For Italian immigrants and their descendants, Columbus Day was not simply a celebration of European conquest. It was also part of an effort to gain acceptance for an immigrant group that faced widespread prejudice and, sometimes, horrific violence. Whatever one thinks of Columbus, that history is worth remembering.

10/12/1977: Regents of the University of California v. Bakke argued.

Stephanie Slade's new book, Fusionism: Liberty, Virtue, and the Future of the American Right, makes the case that the political philosophy that defined much of the post-War American Right should continue to guide the American conservative movement in the twenty-first century. As my recent essay on postliberalism suggests, I largely agree with Slade. Fusionism is a better path for American conservatism than postliberalism or populist nationalism.

Last week, Civitas Outlook hosted a symposium on Slade's book. Here is the description:

Civitas Outlook presents the Fusion Symposium featuring commentaries from five noted authors and editors on Stephanie Slade's new book, Fusionism: Liberty, Virtue, and the Future of the American Right. This book highlights the fundamental ethos of postwar American conservatism that Frank Meyer articulated as an editor at National Review. This ethos rooted virtue in human freedom, the fundamental condition of man, but freedom was not an end. Meyer stated that our choices must seek the end of truth and the ennobling of the human person. Meyer argued in the 1960s that

We are today historically in a situation created by thirty years of slow and insidious revolution at home and a half century of violent open revolution abroad. To conserve the true and the good under these circumstances is to restore an understanding (and a social structure reflecting that understanding) which has been all but buried; it is not to preserve the transient customs and prescriptions of the present.

But Meyer did not look to the federal government's power to reestablish the "true and the good." He said that "The decisive criterion of any political order is the degree to which it establishes conditions of freedom." That freedom is meant to choose the cardinal and theological virtues. But, virtue, Meyer says, "is not a political problem, it is not the concern of the state." Freedom is "only a condition of that end, which is virtue." We begin to see that fusionism is much more than an old political coalition and is pivotal to American conservatism.

Contributions to the symposium are:

Elizabeth Corey, Fusion: Power Is Not the Last Word;
Richard Morrison, What Fusion Will We Build;
Paul Mueller, Recovering Fusionism;
Veronique de Rugy, Fusionism and the Moral Prerequisites of Citizenship;
Paul Seaton, The Bifurcated Fusionist Regime.

For more on the book, and why Fusionism remains relevant today, you can also check out this interview with Slade by James Patterson on Law & Liberty.

Last month, in Welty v. Dunaway, a divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a universal injunction against the "recruiting" provisions of Tennessee's Underage Abortion Trafficking Act. Judge Stranch wrote for the panel, joined by Judge Ritz. Then-Chief Judge Sutton dissented, explaining that the court reached out to block the law, as it did not apply to the plaintiffs' conduct. Accordingly, there was no basis to enjoin the law's enforcement against the plaintiffs, let alone to enjoin it universally.

Judge Stranch summarized her lengthy majority opinion with this introduction:

When the Supreme Court issued Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), its decision triggered Tennessee's near-total abortion ban, which criminalizes performing an abortion at any stage of gestation, Tenn. Code Ann. § 39-15-213(b). Two years later, as part of its Underage Abortion Trafficking Act, the Tennessee legislature enacted the "Recruitment Provision," which criminalizes intentionally recruiting an unemancipated minor for purposes of obtaining an abortion that "would constitute a criminal abortion under § 39-15-213," regardless of where the abortion is procured. § 39-15-201(a). The Recruitment Provision thus purports to reach beyond Tennessee's regulation of abortion within its own borders, barring recruitment for abortions that are illegal in Tennessee but legal where they take place.

Rachel Welty and Aftyn Behn are two prominent advocates for abortion rights in the state of Tennessee, and they both regularly counsel minor Tennesseans regarding how they may obtain legal abortions. Before the Recruitment Provision went into effect, Welty and Behn filed this pre-enforcement suit against the district attorneys general in the Middle District of Tennessee, contending the provision violates the First Amendment facially and as applied. The district court granted summary judgment to Welty and Behn on the First Amendment claims, holding that the Recruitment Provision constitutes unconstitutional viewpoint discrimination as applied to them, and that it is facially overbroad. The district court then issued an injunction barring the defendants from enforcing the Recruitment Provision. It also held that the Recruitment Provision is not unconstitutionally vague. For the following reasons, we AFFIRM, without reaching vagueness.

As readers may have surmised, I found then-Chief Judge Sutton's dissent more convincing. Here is how he summarized his opinion:

The court, I fear, makes this free-speech case more difficult than it is. In 2024, Tennessee enacted a law that prohibits the "abortion trafficking of a minor." The law prohibits individuals from "intentionally recruit[ing], harbor[ing], or transport[ing]" pregnant minors living in Tennessee for one of three purposes: (1) to "conceal[]" an illegal abortion from the parents; (2) to "procur[e]" an abortion in violation of Tennessee law, whether the abortion occurs in Tennessee or elsewhere; or (3) to "obtain[]" an "abortion inducing drug" for the minor to get an abortion banned by Tennessee law.

Rachel Welty and Aftyn Behn, the two plaintiffs in the case, are abortion-rights advocates. They do not challenge the ban on harboring or transporting pregnant minors to obtain abortions banned by Tennessee law. They instead challenge only the ban on intentionally recruiting minors to obtain abortions in violation of Tennessee law, whether the minors ultimately procure the abortion in the State or elsewhere.

Yet the law does not cover their abortion counseling efforts. Welty admits that her
"goal" in speaking with minors "is never to persuade someone" to get an abortion. R.35 at 24. And Behn admits that she merely "provid[es]" minors "information so that they can make an informed decision." R.35 at 44. Their work, in short, is pro-choice, not pro-abortion. All they want to do is to continue to advocate in favor of changes to abortion policy in Tennessee and to provide counseling—information that would inform the individual's decision whether to obtain an abortion—to pregnant minors and adults. On the other side of the case sits the State of Tennessee and its district attorneys. They agree that the plaintiffs' past abortion counseling and planned future counseling do not violate the statute. Leaving no room for doubt, they disclaim any desire to prosecute the plaintiffs under the new law for their counseling and information providing activities.

Yet this violent agreement about the narrow scope of the law has somehow prompted a decision by the court to invalidate it universally—which is to say on its face, across the board, in all of its applications. How could a case that barely amounts to a "case" under Article III and one that a skilled mediator ought to be able to resolve in two hours lead to a ruling of unconstitutionality and a form of relief—a universal injunction—that the U.S. Supreme Court just one year ago called a "sweeping" overreach? Trump v. CASA, Inc., 606 U.S. 831, 843 (2025). Because I see consensus where the court sees conflict, because the best reading of the statute permits plaintiffs' counseling speech and actions, and because at all events longstanding constitutional avoidance principles require us to minimize rather than maximize any potential constitutional conflict, I would resolve this case by giving both parties what they want. For the plaintiffs, that means they may continue to do the only things they claim an interest in doing, because the law does not apply to mere advocacy and counseling but only to intentionally recruiting Tennessee children—at a minimum inducing them—to obtain abortions banned by Tennessee law. For the State, that means upholding the law after clarifying its narrow scope. While we judges often lament the heated political conflicts of our times, we sometimes miss opportunities to lower that temperature rather than to increase it.

The question now is whether this decision will be reviewed en banc.

10/11/1972: Roe v. Wade argued.

10/10/2012: Fisher v. University of Texas at Austin I argued.

From today's First Circuit decision today in Bean Maine Lobster, Inc. v. Monterey Bay Aquarium Found., written by Judge Julie Rikelman and joined by Judges Gustavo Gelpí and Seth Aframe:

This appeal concerns the so-called "group defamation rule." Under that rule, a defamatory statement about a large group is not actionable unless the statement or its context indicates that it is targeted at specific members of the group.

Here, multiple companies and organizations involved in the Maine lobster industry sued the Monterey Bay Aquarium Foundation ("the Aquarium") for defamation under Maine law. The plaintiffs challenged the Aquarium's statements recommending that consumers avoid eating American lobster because lobster fishing poses a risk to the endangered North Atlantic right whale, even though those statements did not single them out in particular….

The district court denied [a motion to dismiss], concluding that the Aquarium's statements applied equally to each member of the Maine lobster industry. We disagree with the district court's application of the group defamation rule and thus reverse….

To maintain an action for defamation under Maine law, a plaintiff must establish that the alleged defamatory statement was "of and concerning" them. When a statement defames a large group of which the plaintiff is a member, courts have generally concluded that the plaintiff cannot satisfy the "of and concerning" element by virtue of the common-law principle known as the group defamation rule. Under this rule, "[d]efamation of a large group gives rise to no civil action on the part of an individual member of the group unless he can show special application of the defamatory matter to himself."

From Fifth Circuit Judge Priscilla Richman, concurring in the 10-7 vote to deny rehearing en banc in Evans v. Garza (for more on last year's panel opinion, see here):

The statute under scrutiny made it a crime to disseminate a photograph of a person in a restroom under certain circumstances. The photo that Michelle Evans tweeted undoubtedly punctuated her political speech that accompanied the photo. But Michelle Evans could have conveyed her political views without publishing the photo. The Texas statute did not impinge at all on Evans's ability to broadcast to the world that she saw a biological male who is transgender, and who was also a political candidate, use a women's public restroom at the Texas Capitol complex, and to express her strong political views that this should not be permitted.

The question is whether it is likely (since we are at the preliminary injunction stage) that a state has a compelling interest in protecting a person's expectation of privacy in a restroom that is sufficient to outweigh First Amendment free speech rights under the facts of this case. I submit that the answer is "yes."

Evans attended a debate in the Texas House of Representatives at the Texas Capitol about gender reassignment treatment for children. When she visited the women's restroom, she encountered a biological male who is a transgender female, and who was at the time running for election to the Texas House of Representatives. Texas law did not prohibit a biological male who identifies as a female from using a women's restroom….

Evans then returned to her seat in the Capitol gallery, where one of her seatmates showed her that someone else from their group had posted on Facebook a photo of the candidate washing their hands in the women's restroom. Evans posted the photo on Twitter with a caption:

Evans's tweet generated a controversy, and the Travis County District Attorney, José Garza, investigated whether Evans had violated Texas Penal Code § 21.15(b). This statute criminalized—as a state jail felony—transmitting "a visual image of another in a bathroom or changing room" or promoting such a transmission if the action is done without consent and "with intent to invade the privacy of the other person."

What is this even supposed to mean?

Is it just self-parody?

The Volokh Conspiracy

New Essay: "The Establishment Clause At The Second Founding"

May an Employer Fire a White Woman for Wearing Hair in Cornrows?

Someone Trying to Vanish Articles About Forged U.K. Court Order Aimed at Vanishing Article About Businessman Mason Soiza

Today in Supreme Court History: October 13, 1890

Open Thread

Congratulations to the Hoover Institution's Robert E. Hall, on His Economics Nobel Prize

The Forgotten Origins of Columbus Day

Today in Supreme Court History: October 12, 1977

Open Thread

Fusionism in the Twenty-First Century

Sixth Circuit Affirms Universal Injunction Against Tennessee "Abortion Trafficking" Law that Does Not Reach Plaintiffs' Conduct

Today in Supreme Court History: October 11, 1972

Open Thread

Today in Supreme Court History: October 10, 2012

Open Thread

Statement About Maine Lobster Industry as a Whole Can't Be Actionable Group Defamation

Kafka's The Trial "Was Not Supposed to Be an Instruction Manual"

I Am Now "THE ENEMY!" (as Is Everyone Who Uses the Term "Artificial Intelligence")

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