Today in Supreme Court History: June 17, 1963

6/17/1963: Sherbert v. Verner is decided.

Comments

[Dan Schiavetta]

Fulton v. City of Philadelphia, 593 U.S. 522 (decided June 17, 2021): Free Exercise Clause prevented City from requiring placement agencies (including Catholic ones) to accept same sex couples for foster care program (for years I defended Catholic placement agencies and this is one of many places where the people “on the ground” disagree with Church teaching; at no point in this case does anyone feel free to point out the open secret, that the Church’s opposition to same-sex unions is by now practically a laughingstock to its own flock and even to its own priesthood except in places like Uganda, where they execute people for being gay and the bishops there have no problem with it)

School District of Abington Township v. Schempp, 374 U.S. 203 (decided June 17, 1963): bans daily Bible readings in public school (“ten verses . . . without comment”) as violating First Amendment Establishment Clause even though parent could request child be excused (following up on Engel v. Vitale, 1962, which banned school-led prayer) (the verses were chosen by the homeroom teacher; I would have read from Song of Solomon)

Sherbert v. Verner, 374 U.S. 398 (decided June 17, 1963): denying unemployment benefits to Seventh Day Adventist because she refused to accept jobs where she had to work on Saturdays violated her free exercise First Amendment rights and no “compelling state interest” in forcing her to accept Saturday work (easy to see that; lots of jobs don’t require weekend work -- but what if she was a Third Day Adventist and couldn’t work on Tuesdays?)

Nestlé USA v. Doe, 593 U.S. 628 (decided June 17, 2021): Alien Tort Statute (which allows foreigners to sue in United States courts) does not extend to allegation by plaintiffs from Mali that they were trafficked as child slaves to harvest cocoa; Court refuses to recognize fourth overseas tort (the three already recognized are violation of safe conduct, infringement of rights of ambassadors, and piracy)

Virginia Uranium v. Warren, 587 U.S. --- (decided June 17, 2019): state mining laws are not preempted by Atomic Energy Act (here, Virginia bans mining of uranium)

Int’l Brotherhood of Teamsters v. Vogt, 354 U.S. 284 (decided June 17, 1957): upholding ban on picketing of gravel pit because purpose was not to punish owner but to coerce workers to join union, citing Wisconsin statute prohibiting picketing if no labor dispute

Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424 (decided June 17, 1963): New Mexico statute prohibiting advertising of optometrist prices applied to enjoin ads in New Mexico newspaper and radio station placed by optometrist located in nearby Texas

Powell v. Texas, 392 U.S. 514 (decided June 17, 1968): disallowing “I can’t help it -- I’m an alcoholic” defense to charge of public intoxication is not Cruel and Unusual Punishment (distinguishing Robinson v. California, 1962, which held that being a drug addict by itself is not a crime, because that’s a status, not an act)

Cardwell v. Lewis, 417 U.S. 583 (decided June 17, 1974): no warrant needed for examining tire treads and taking scrapings of exterior paint of car impounded from public parking lot after owner was arrested for murder

California v. Texas, 591 U.S. 659 (decided June 17, 2021): neither States nor citizens have standing to contest individual mandate of the Affordable Care Act; can’t show injury because mandate was revised to $0

[apedad]

In Cardwell (5 - 4), I'd agree with the dissent that the cops should have obtained a warrant - especially when evidence is collected.

Though the police had secured a warrant for respondent's arrest at 8 a.m., respondent was not arrested until late in the afternoon, after which his car was towed to a police impoundment lot, where a warrantless examination the next day of the outside of the car revealed that a tire matched the cast of a tire impression made at the crime scene and that paint samples taken from respondent's car were not different from foreign paint on the fender of the victim's car.

Even the Solicitor General, who appeared as amicus curiae urging a reversal of the Court of Appeals' judgment in this case, has candidly admitted in his brief that "no satisfactory reason appears for the failure of the law enforcement officers to have obtained a warrant -- there appears on the facts of this case to have been no real likelihood that respondent would have destroyed or concealed the evidence sought during the time required to seek and procure a warrant."

https://supreme.justia.com/cases/federal/us/417/583/

[Dan Schiavetta]

Thanks! Though you’d get an earful from Marisa Tomei.

[JoeFromtheBronx]

The dissent in Sherbert v. Verner had a point.

Justice White was one of the dissenters. He also disagreed with the breadth of many of the school funding cases. But, White had something of a middle-of-the-road view. See, e.g., his interesting dissent in Widmar v. Vincent.

[SMP0328]

School District of Abington Township v. Schempp, 374 U.S. 203 (decided June 17, 1963): bans daily Bible readings in public school (“ten verses . . . without comment”) as violating First Amendment Establishment Clause even though parent could request child be excused (following up on Engel v. Vitale, 1962, which banned school-led prayer) (the verses were chosen by the homeroom teacher; I would have read from Song of Solomon)

Since Kennedy v. Bremerton School District, 597 U.S. 507 (2022), I've been waiting for a challenge to Engle and Schempp. I would consider a school-led prayer to be a form of coercion, even with an opt-out, but I'm not certain a majority of the current Justices would agree with me.

[apedad]

Agree especially in light of KENNEDY v. BREMERTON SCHOOL DISTRICT (6/27/2022)

The Supreme Court on Monday (6/27/22), ruled in favor of a high school football coach who lost his job because of his post-game prayers at the 50-yard line. By a vote of 6-3, the justices ruled that Joseph Kennedy’s conduct was protected by the First Amendment.

The court rejected the public school district’s argument that allowing Kennedy’s prayers to continue would have violated the Constitution’s establishment clause, which bars the government from both establishing an official religion and preferring one religion over another. And it pushed back against the argument that students might have felt obligated to join Kennedy’s prayers, stressing that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’”

The decision by Justice Neil Gorsuch was joined in full by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Justice Brett Kavanaugh joined most of Gorsuch’s opinion. The three liberal justices dissented. It was the second major ruling on religion and schools in less than a week. On June 21, along the same 6-3 ideological lines, the court struck down a Maine law that banned the use of public funds for students to use at private schools that provide religious instruction.

https://www.scotusblog.com/2022/06/justices-side-with-high-school-football-coach-who-prayed-on-the-field-with-students/
~~~~

And this, " . . . learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry . . . ,” is garbage.

It's not the SC's job to say how society is to act.

[Dan Schiavetta]

The people on that football field would act quite differently if the prayer was from a Muslim coach kneeling toward Mecca. I think the Court would act differently too.

[apedad]

True story.

I was in Greenland in 1982 with the Air Force installing radar.

We had a civilian who was Muslim and would dutifully pray towards Mecca (several times?) daily as required.

We had a plane come up to do a geodetic survey of our radar system to ensure everything was aligned and come to find out, the little, cheap compass he used to locate Mecca was slightly off in degrees (but over thousands of miles, that put him way off).

He got with his imam and they determined he had made a true effort to meet his religious requirements.

(Geodetic surveying is the survey in which the curvature of the earth is taken into account and higher degree of accuracy in linear and angular observations is achieved.)

[Dan Schiavetta]

Thanks. Reason usually prevails with clergy who are “close to the ground” (like that imam).

[David Nieporent]

Agree especially in light of KENNEDY v. BREMERTON SCHOOL DISTRICT (6/27/2022)

That decision was based on the premise that the coach's praying was entirely private and non-coercive. While that premise was not really related to the actual facts of the case, a situation where the praying was not private — such as teacher-led prayer/"bible" study in a classroom — would not in any way be supported by the court's ruling in the Bremerton case.

[SMP0328]

The issue is whether the Justices in the Kennedy majority would find that school-led prayer that included an opt-out is coercive. You would, as would apedad and I. OTOH, the Kennedy majority might decide that Engle and Schempp are the next cases to go on the chopping block. I strongly doubt Kennedy is the apex of the Establishment Clause revolution at the Roberts Court.

[not guilty]

“Since Kennedy v. Bremerton School District, 597 U.S. 507 (2022), I’ve been waiting for a challenge to Engle and Schempp. I would consider a school-led prayer to be a form of coercion, even with an opt-out, but I’m not certain a majority of the current Justices would agree with me.”

I am trying to envision how the Alliance Defending Fanatics would set up such a lawsuit in hope of eventually getting before SCOTUS. Would a self-proclaimed “Christian” public school teacher sue stating that he wished to lead schoolchildren in prayer or Bible reading but feared to do so, a la Lorie Smith? Would such a teacher defy school board regulations prohibiting classroom religious exercises and sue if disciplined?

[SMP0328]

I think such a case would involve a school board or a State instituting a school-led prayer like in Engle and/or Schempp. A rouge teacher, other school administrator, would simply be shot down by the school board or State.

[CJColucci]

Why would cosmetology teachers be at special risk?

[SMP0328]

LOL.

"rouge teacher" --> "rogue teacher"

Now would you like to comment on what's been said?

[not guilty]

"I think such a case would involve a school board or a State instituting a school-led prayer like in Engle and/or Schempp. A rouge teacher, other school administrator, would simply be shot down by the school board or State."

If such a school prayer policy were instituted it would be immediately challenged and struck down, with significant attorney fees being awarded. I doubt that a school board would be sufficiently motivated to seek SCOTUS review.

OTOH, I can envision a group such as the Alliance Defending Foolishness recruiting a cat's-paw, self-proclaimed "Christian" teacher to lead the class in prayer in contravention of school board policy, then filing suit if the teacher were disciplined by the employer.

That is not a novel tactic. Nearly a century ago the ACLU recruited John Scopes to teach the theory of evolution (from a state approved textbook) in order to challenge the Tennessee statute which prohibited such teaching.

[SMP0328]

If such a school prayer policy were instituted it would be immediately challenged and struck down, with significant attorney fees being awarded. I doubt that a school board would be sufficiently motivated to seek SCOTUS review.

OTOH, I can envision a group such as the Alliance Defending Foolishness recruiting a cat’s-paw, self-proclaimed “Christian” teacher to lead the class in prayer in contravention of school board policy, then filing suit if the teacher were disciplined by the employer.

I don't see why the ADF would not be willing to represent a school board or why such a school board would not be motivated to carry the case all the way to SCOTUS. A federal district court and Court of Appeals would be bound to follow Engle and Schempp, so the only reason to start such an endeavor would be to get to SCOTUS. I would not be surprised if there is a sufficiently motivated school board or State. Remember, Dobbs happened because Mississippi was motivated to enact a law it knew would be struck down under Roe and Casey at the district court and Court of Appeals levels.

[not guilty]

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[JoeFromtheBronx]

Powell v. Texas was an interesting case.

Thurgood Marshall for the plurality. White (who dissented from Robinson) concurred, basically proposing a homeless drunk might win. Warren was part of the majority.

The other liberals (and the more moderate Stewart) dissented.

We might receive some clarification on the reach of Robinson in the upcoming homeless case.