Political Philosophy and Ethics discussion
Political Philosophy and Law
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Separation of Religion and Government; Liberty of Conscience and Toleration
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I'll link to the actual opinion on the Supreme Court website, which will be prefaced by a syllabus (summary) prepared by Supreme Court staff. If I have time, I'll prepare my own analysis, but I am currently in the throes of getting my Electoral College book (now entirely written) ready for publication. Since, however, the Supreme Court's decision will likely not be issued until June, I should be able to provide my analysis at that time.
Here's an advance opinion and fact piece on the case - considerably more subtle and penetrating than the usual blather in the newspapers - from Reason.com last summer on the Masterpiece Cakeshop case before the SCOTUS: http://reason.com/archives/2017/06/30...
the stories that dominate coverage distort the public's understanding of the case and its serious implications.
"religious liberty" is almost always solidly ensconced inside quotation marks to indicate that social conservatives are just using it as a facade
(the barkery owner) never refused to serve a gay couple. He didn't even really refuse to sell David Mullins and Charlie Craig a wedding cake. They could have bought without incident. Everything in his shop was available to gays and straights and anyone else who walked in his door. What Phillips did was refuse to use his skills to design and bake a unique cake for a gay wedding. Phillips didn't query about anyone's sexual orientation. It was the Colorado Civil Rights Commission that took it upon itself to peer into Phillips' soul, indict him and destroy his business over a thought crime.
In 2014, a Christian activist named William Jack went to a Colorado bakery and requested two cakes in the shape of a Bible, one to be decorated with the Bible verses "God hates sin. Psalm 45:7" and "Homosexuality is a detestable sin. Leviticus 18:22," and the other cake to be decorated with another passage. The bakery refused. Even though Christians are a protected group, the Colorado Civil Rights Division threw out the case.
perhaps we've finally established a state religion in this country: It's run on the dogma of "social justice."
Of course, there is more than the excerpts I offered - see the piece - well under 1,000 words.
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America’s fourth president, Madison was a longtime advocate of religious freedom. He was considered a “founding father” of the Constitution and was a primary author of the First Amendment. He addressed the chaplaincy issue in a series of essays scholars believe were drafted between 1820 and 1830. Known as the “Detached Memoranda,” the essays cover a range of topics, including religious freedom.
In one essay, Madison asked the question, “Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?”
He then answers himself: “In strictness the answer on both points must be in the negative. The Constitution of the U.S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation[?]”
Concludes Madison, “The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles.”
(Emphasis added.)
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On August 29, 2018, Chief Judge Christopher C. Connor of the United States District Court for the Middle District of Pennsylvania filed an Order and Memorandum (opinion), holding, inter alia, that the policy of the Pennsylvania House of Representatives of refusing to allow nontheists (including secular humanists and nonbelievers) to give opening invocations at legislative sessions, while allowing such invocations by theists, violates the Establishment Clause of the First Amendment to the U.S. Constitution, as applied to the states by the Fourteenth Amendment.
The court also held that the previous policy of the Pennsylvania House of Representatives of requiring people in the audience to stand during invocations also violated the Establishment Clause.
Chief Judge Connor was nominated to the Middle District of Pennsylvania by President George W. Bush and confirmed by the Senate in 2002.
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On February 7, 2019, the U.S. Supreme Court issued its ruling in Dunn v. Ray. Because this was not a regular case but rather an application to vacate the stay of the lower courts, there was no opinion on the merits. The Supreme Court granted the application to vacate the stay of execution of sentence of death entered by the Eleventh Circuit Court of Appeals with the following one-paragraph explanation of the reason for the vacation of the stay:
On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).This was a 5-4 decision, with Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh voting in favor of the Supreme Court's action without an opinion. Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, filed a dissenting opinion. Although this dissenting opinion is posted here, I am reproducing it in full below given the importance of this matter:
Holman Correctional Facility, the Alabama prison where Domineque Ray will be executed tonight, regularly allows a Christian chaplain to be present in the execution chamber. But Ray is Muslim. And the prison refused his request to have an imam attend him in the last moments of his life. Yesterday, the Eleventh Circuit concluded that there was a substantial likelihood that the prison’s policy violates the First Amendment’s Establishment Clause, and stayed Ray’s execution so it could consider his claim on its merits. Today, this Court reverses that decision as an abuse of discretion and permits Mr. Ray’s execution to go forward. Given the gravity of the issue presented here, I think that decision profoundly wrong.One wonders whether Justice Kennedy, whose retirement resulted in the elevation of Justice Kavanaugh to the Supreme Court, would have voted with the majority in this case or with the dissenters. One also wonders how Merrick Garland, whom President Obama nominated to fill the seat of the deceased Justice Scalia, would have voted had Senate Majority Leader Mitch McConnell permitted a vote on his nomination and such vote had resulted in Garland's appointment to the Supreme Court instead of the later Trump appointee Neil Gorsuch. As they say, elections have consequences. Finally, one wonders whether this case is the opening gambit for future cases in which the Supreme Court will eventually approve an official declaration stating that the United States is a "Christian nation." For the Religious Right, "tis a consummation devoutly to be wished." (Shakespeare, Hamlet, Act III, Scene 1.) Their president is making their long-standing dreams come true. I told my wife she might as well order her red Handmaid's Tale uniform right now.
“The clearest command of the Establishment Clause,” this Court has held, “is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U. S. 228, 244 (1982). But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality. See, e.g., Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“[Government] may not . . . aid, foster, or promote one religion or religious theory against another”); Zorach v. Clauson, 343 U. S. 306, 314 (1952) (“The government must be neutral when it comes to competition between sects”).
To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security. That is not enough to support a denominational preference.
I also see no reason to reject the Eleventh Circuit’s finding that Ray brought his claim in a timely manner. The warden denied Ray’s request to have his imam by his side on January 23, 2019. And Ray filed his complaint five days later, on January 28. The State contends that Ray should have known to bring his claim earlier, when his execution date was set on November 6. But the relevant statute would not have placed Ray on notice that the prison would deny his request. To the contrary, that statute provides that both the chaplain of the prison and the inmate’s spiritual adviser of choice “may be present at an execution.” Ala. Code §15–18–83(a) (2018). It makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear). So there is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.
This Court is ordinarily reluctant to interfere with the substantial discretion Courts of Appeals have to issue stays when needed. See, e.g., Dugger v. Johnson, 485 U. S. 945, 947 (1988) (O’Connor, J., joined by Rehnquist, C. J., dissenting). Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date. I respectfully dissent.
In message #160, Alan suggests, "Finally, one wonders whether this case is the opening gambit for future cases in which the Supreme Court will eventually approve an official declaration stating that the United States is a `Christian nation'." Yes, I agree. The conservative mind remains a mystery to me. It appears to absolutize freedom until it doesn't.
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The official U.S. Supreme Court slip opinions for this decision are posted here.
This case involves the constitutionality, under the Establishment Clause of the First Amendment to the U.S. Constitution, of the ownership of the Bladensburg Peace Cross ("Cross") and the land on which it is situated by a state governmental entity (since 1961, the Maryland-National Capital Park and Planning Commission). The Establishment Clause states: "Congress shall make no law respecting an establishment of religion . . . ." In the twentieth century, the Supreme Court held that the Establishment Clause applies to state and local government by way of the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1 (1947). Eight of the nine current justices appear to accept this "incorporation" principle. However, Justice Thomas, in his opinion concurring in the judgment in the present case, reiterated a point he has made in earlier cases: the Establishment Clause is designed to prevent the federal government from interfering with state establishments of religion, not to protect individuals from state religious establishments. In Thomas's view, state establishments of religion are perfectly constitutional and legitimate. For a refutation of Thomas's position on this question, see pages 515-16n30 (Kindle loc. 8536-50) of my book The First American Founder: Roger Williams and Freedom of Conscience (Philosophia, 2015).
A photograph of the Cross is included in the appendix to Justice Ginsburg's dissenting opinion. The Cross is located in Prince George's County, Maryland. It is thirty-two feet high and sits on a large pedestal. Construction of the cross was completed in 1925 as a tribute to forty-nine soldiers from the area who died in World War I.
There are nine justices on the Supreme Court. Seven of them filed separate opinions in this case. Justice Alito's opinion was joined in full by three other justices (Chief Justice Roberts and Justices Breyer and Kavanagh). However, a majority requires at least five of the nine justices, and thus only the portions of Justice Alito's opinion that were also joined by Justice Kagan constitute the official Opinion of the Court with mandatory precedential authority on subsequent cases. Justice Kagan declined to join Parts II-A and II-D of Justice Alito's opinion, and those parts constitute only a plurality opinion (four of the nine justices), which, as such, do not constitute mandatory authority.
In significant and controversial cases, we are accustomed to seeing a 5-4 split between the so-called "conservative" wing (Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanagh) and the so-called "liberal" wing (Justices Ginsburg, Breyer, Kagan, and Sotomayor) of the Court. What is strange about this case is that Justices Thomas and Gorsuch refused to join in Justice Alito's opinion; instead, they filed opinions concurring in the judgment only. What is perhaps even stranger is that two of the supposedly "liberal" justices—Breyer and Kagan—joined Alito's opinion in whole or in part, thus making most of Alito's opinion the official Opinion of the Court. The following discussion of Justice Alito's opinion addresses only those portions in which both Justices Breyer and Kagan joined, thus making those sections the Opinion of the Court.
Justice Alito and the four justices who joined in the Opinion of the Court held that the Cross does not violate the Establishment Clause. They argued, against two millennia of religious history, that the Cross had and/or has a secular meaning. Additionally, "[a]s our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage." Indeed, "[f]amiliarity itself can become a reason for preservation." Moreover,
when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning. A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past, [footnote omitted] and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive.At the same time, "retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality." With this statement, the Court appeared to be indicating that it might have held the Cross to be unconstitutional if it had been constructed in the recent past.
Justice Ginsburg, joined only by Justice Sotomayor, dissented vigorously. She cited classic Supreme Court cases from the twentieth and early twenty-first centuries in opposition to the emerging conservative orthodoxy. Icons of church-state separation such as Thomas Jefferson, James Madison, and Justice John Paul Stevens, as well as moderates such as Justice Sandra Day O'Connor, make explicit appearances in Ginsburg's quietly passionate prose. Ginsburg eviscerates the majority's unhistorical notion that a Latin cross such as the Bladensburg Cross could ever be understood to be a common, secular symbol: such a view insults not only non-Christians but also devout Christians, who for almost 2,000 years have considered the cross to be a holy symbol of their faith.
As against Alito's parade of horribles (inspired by developments in the French and Russian revolutions), Ginsburg observes that the Cross need not be torn down. The government could deed back ownership of the land and property to a private entity, or the Cross could be moved to private land. Quoting Justice Stevens, she states that "like the determination of the violation itself," the "proper remedy is necessarily context specific."
Justice Ginsburg concludes her well-reasoned and well-corroborated eighteen-page dissenting opinion with the following statement of her position:
The Establishment Clause, which preserves the integrity of both church and state, guarantees that “however . . . individuals worship, they will count as full and equal American citizens.” Town of Greece, 572 U. S., at 615 (Kagan, J., dissenting). “If the aim of the Establishment Clause is genuinely to uncouple government from church,” the Clause does “not permit . . . a display of th[e] character” of Bladensburg’s Peace Cross. Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 817 (1995) (Ginsburg, J., dissenting).
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Anyone see the irony in Christian justices arguing that the symbol of the cross has become so familiar and mundane that it has lost its sanctity and become secular? It echoes of Nietzsche.
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Exactly. In the seventeenth century Roger Williams pointed out that the mixture of government and religion corrupts both. Madison later repeated the statement. There is a possibility that both Madison and Jefferson were aware of Williams and his teaching as a result of their political contacts with Baptists who followed Williams in preaching separation of church and state.
Time did it allow me to read either the plurality opinion or the dissent, but only the five (5) Concurrences.Time also does not allow me presently to critique any of those Concurrences. However, I would recommend Justice Gorsuch's opinion. His rationale and discussion on the issue of Standing would avoid much of the conflict present in the various Establishment Clause cases, as well as restrict future controversies to ones of clearest merit.
Alan wrote: "THE BLADENSBURG CROSS CASE: American Legion v. American Humanist Association, U.S. Supreme Court, June 20, 2019
The official U.S. Supreme Court slip opinions for this decision are posted here.
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I understand your position, but I am not sure I agree with it. As a fellow lawyer (in my case retired), you are aware that standing is a complicated legal matter. I tend to think there should be more, rather than less, standing, especially in Establishment Clause cases. I would not go so far as to empower the courts to give advisory opinions, but a strict doctrine of standing would preclude the courts from adjudicating some important questions. We are currently experiencing a reactionary movement in the direction of church-state merger, especially compared with the great Supreme Court decisions of the 1960s on these issues. This latest decision is a step in the direction of Christian nationalism and the Religious Right's fervent desire to have this country officially proclaimed a "Christian nation." Roger Williams, Thomas Jefferson, James Madison, and others opposed such developments, and the Supreme Court began to implement their vision during the twentieth century. This is not a matter to be adjudicated by democratic vote and legislative politicians. As Jefferson and Madison, for example, understood, there are individual rights that are "unalienable" to the body politic, and the most important of these are the rights of conscience. That said, given the direction of the contemporary Supreme Court, maybe it would be better not to give them so many opportunities to backtrack from the progress that was formerly accomplished.
It is possible, as noted below, that Jefferson was aware of Roger Williams' opinions. (I have no knowledge of Madison's awareness thereof.) The issue though is the construction of the Free Establishment clause, and I tender that Mr. Chief Justice Waite, in Reynolds v United States (1879), followed by Mr. Justice Black, in Everson v Board of Education (1947), misconstrued the prohibition against any "law respecting an establishment of religion or prohibiting the free exercise thereof," as requiring "a wall of separation between church and State", as enunciated by Jefferson in his letter to the Danbury Baptists. First, it of course was Madison that proposed in the First Congress the amendments that would, in part, become the Bill of Rights. While Madison and Jefferson agreed on many things (e.g. Kentucky and Virginia Resolutions), they certainly had differing opinions also. Further, Jefferson had no role in those amendments; when Congress passed the bill consisting of the proposed amendments to be submitted for ratification, Jefferson was still in France. How then Mr. Chief Justice Waite could find that Jefferson's opinion "may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured" is more than a bit surprising.
Second, while scholarly opinion differs on the origin of the phrase and what was understood by Jefferson thereby, there is some support that his opinion was parallel with that expressed by Roger Williams more than a century prior. (The fact that both Williams and the Baptists were opponents of the Congregationalists seems to me more than a bit material to the issue, as will appear below.) There is little dispute that Williams was not in the mainstream of thought on the question. Likewise, I would modestly tender that, even if Jefferson intended what was later inferred by SCOTUS, neither was he in the mainstream.
Third, it would appear that Jefferson's missive was intended more for political benefit than intended as a legal or philosophical exposition. It thus should earlier and now not have received the impact it was afforded.
New England, and Connecticut in particular, was the stronghold of Federalist politics. Providing support to Federalist opponents then was to the benefit of the Democratic-Republicans. According to Dumas Malone, perhaps his preeminent biographer, Jefferson circulated a draft of the letter only to his Postmaster General and Attorney General, his chief consultants on New England, for their comments. Malone concludes that, by the letter, Jefferson "was seeking to encourage the dissenting minority in Connecticut and to rebuke the politico-religious rulers of that commonwealth." The "politico-religious rulers of that commonwealth" were the Congregationalists.
Malone does not indicate that it was also circulated to his Secretary of State, Madison. Further, my scanning of the correspondence between Jefferson and Madison during the last quarter of 1801 and the first few days of 1802, the letter to the Baptists being dated January 1, 1802, discloses no reference to it. If Jefferson had intended it to be "an authoritative declaration" on the First Amendment, would he not have also elicited Madison's comments thereon?
The Reynolds and Everson decisions are now of course precedent. But, as we all know, precedent has not necessarily been without error. In this instance Jefferson's metaphor resulted in an Historical Fiction that regrettably produced much misdirection in this jurisprudence.
"Brad wrote: "Anyone see the irony in Christian justices arguing that the symbol of the cross has become so familiar and mundane that it has lost its sanctity and become secular? It echoes of Nietzs..."
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I address all these historical and legal matters (except the Reynolds decision) in my book The First American Founder: Roger Williams and Freedom of Conscience and do not have time or space to reiterate my extended analysis of them in this forum.
That said, I assume you are aware that the Congregationalists established a Puritan theocracy in seventeenth-century Massachusetts Bay (whipping, imprisoning, fining, banishing, and executing religious dissenters) and that it was not until the Unitarians began to take over the governmentally established churches and tax-supported Harvard University in the early nineteenth century that the Congregationalists finally joined their erstwhile archenemies, the Baptists and Quakers, in demanding disestablishment of religion in Massachusetts. (At that time, of course, the Establishment Clause did not apply to state and local government.) Here is an excerpt from page 326 (Kindle loc. 5281-87) of my book:
At the end of the nineteenth century the great European historian Charles Borgeaud pronounced an eloquent epitaph on seventeenth-century Massachusetts Bay: “Thus was founded the theocratic Commonwealth of Massachusetts, with none like it to be found in history, except the Republic of Calvin; like it, brave, austere, but intolerant of inquiry, persecuting heresy without pity, and without mercy.” [Endnote omitted.] The Massachusetts Bay theocracy was to live on, in somewhat attenuated form, throughout the eighteenth and the beginning of the nineteenth centuries. It substantially expired, “not with a bang, but a whimper,” [endnote omitted] in 1833 [endnote omitted.].As I state on page 263 (Kindle loc. 4364-66), "Massachusetts finally decided to separate church and state not out of any sympathy with Roger Williams’s principles but rather because the Unitarian Church was, as a result of its growing popularity, gradually displacing the Congregational Church as the legal beneficiary of governmental compulsion and largesse." The endnote to that sentence (pages 496-97n39, Kindle loc. 8196-8204) reads, in relevant part, as follows:
The final struggle between Unitarians and Trinitarians over control of the Massachusetts government and tax-supported Harvard University (both of which the Unitarians had come to dominate, notwithstanding the fact that they remained a minority religious group among the general populace) is elaborated in all its delicious irony in chapters 8-9 of Jacob C. Meyer’s Church and State in Massachusetts: From 1740 to 1833 (Cleveland: Western Reserve University Press, 1930). “By 1830 the prejudice between Unitarians and Trinitarians had driven both to the acceptance of the logic [separation of church and state] of the dissenters, at least in part.” Ibid., 211. Trinitarians fumed about “infidels” (the Unitarians) being in control of the established church. Ibid., 218. “By 1831 the [Massachusetts] House of Representatives voted favorably on the amendment for disestablishment. The Senate [then dominated by Unitarians] was able to postpone the submission of the amendment until 1833 when it was ratified by the people by a vote of approximately ten to one.” Ibid., 220.
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The scenario described in my preceding post is what Justice Thomas would have us revisit. As explained in his opinion concurring in the judgment in American Legion v. American Humanist Association, he would allow—even welcome—state and local establishments of religion.
Ladies, you might as well order your red Handmaid's Tale outfits right now.
I just want to say I find this discussion and the other one on a separate page on the Bladensburg Cross case fascinating. Thanks to everyone who is contributing.
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Your book does sound most interesting. Unfortunately, while there is a Kindle version, there doesn't seem to be a Nook version; so I guess I will have to see about downloading the Kindle for PC app or the Kindle for Android app, whichever I can use w/ my devices. (Being a rebel against some of modernity, I avoid Amazon as much as possible and gravitate instead to Barnes and Noble.)I am modestly familiar w/ 17th Century Massachusetts, having in my long-ago youth studied a decent number of the works of Perry Miller and Edmund Morgan; I'm currently, in my "spare time", sporadically revisiting some of Prof Miller's works. These though of course dealt primarily with Massachusetts Bay's theological, rather than political, structure.
I would concur that it appears Massachusetts Bay's theocracy "went off the rails" as essentially being in conflict w/ their theology. One of the pronouncements of the Westminster Confession of Faith is that:
"God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything contrary to his Word, or beside it in matters of faith or worship. So that to believe such doctrines, or to obey such commandments out of conscience, is to betray true liberty of conscience; and the requiring an implicit faith, and an absolute and blind obedience, is to destroy liberty of conscience, and reason also."
Now admittedly when the Long Parliament caused the Westminster Assembly to be instituted, the Arbella had already sailed. Still, the attitude and practices of Winthrop et all ought not to have been at significant variance w/ those of his compatriots who remained behind.
Further, while Archbishop Laud was not installed as such also until after the sailing of the Arbella, his dominance and hostility should have been known by those in Boston. If one finds autocracy in England obnoxious, can one justify it in Boston?
Perhaps the conundrum can be justified by the necessity of contemporaneously establishing both the church and government in a virgin territory. (I'm currently listening to Bradford's "History of the Plymouth Settlement, and will find it interesting how it resolved this question. While the religious polity of the Separatists in Plymouth was different from their Boston counterparts, their theology was essentially the same.) Still, Boston's variance in what it should have done seems indisputable.
The purpose then of the Establishment Clause isn't questioned. My dispute is w/ the misuse of Jefferson's metaphor - in Reynolds, Everson, and Justice Ginsburg's Dissent - which has unduly expanded this purpose. Part of the abuse is Jefferson's use of the dichotomy of "Church and State" whereas the Establishment Clause (as well as the Free Exercise Clause) instead utilizes the term "religion"; the distinction has been noted previously, and different conclusions drawn as a result. While it can be argued that the policy of Jefferson and Williams (assuming the latter was the inspiration for the former) was preferable, I still find little evidence for it being the proper basis of construction of the Establishment Clause.
Alan wrote: "Wayne wrote: "It is possible, as noted below, that Jefferson was aware of Roger Williams' opinions. (I have no knowledge of Madison's awareness thereof.) The issue though is the construction of the..."
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You are correct that there is no Nook version. You can, however, download the Kindle for PC app for free and read it on your computer. As for Android, you can download the Kindle app on an Android cell phone, but the Kindle app does not work on Chromebook. You can access the Kindle version on the web, if you purchase the Kindle book, on Chromebook, but the Kindle web application is not as good as the regular Kindle app.
I myself am not a fan of Amazon for a number of reasons, but it is the best game in town. I have my Electoral College book on Nook as well as Kindle, but the Nook version doesn't work as well. One thing to keep in mind is that neither the Kindle nor the Nook books have the paperback pagination of any of my published books (the Kindle have location numbers, and the Nook has different Arabic pagination than the paperback). That's a long story, with which I will not bore you.
Note: The matters set forth in my comments below are discussed in detail in my Roger Williams book, with extensive citation to and frequent quotations from primary sources.
Wayne wrote: "I am modestly familiar w/ 17th Century Massachusetts, having in my long-ago youth studied a decent number of the works of Perry Miller and Edmund Morgan; I'm currently, in my 'spare time', sporadically revisiting some of Prof Miller's works. These though of course dealt primarily with Massachusetts Bay's theological, rather than political, structure."
My Roger Williams book cites and critically discusses the works of Perry Miller and Edmund Morgan. If you read my book, be sure to read the endnotes and appendices, for it is in those places that I address historiographical and other scholarly matters that would not be of interest to the general reader.
Wayne wrote: "I would concur that it appears Massachusetts Bay's theocracy "went off the rails" as essentially being in conflict w/ their theology." (and following)
Although Roger Williams (contrary to popular belief) adduced secular as well as religious reasons for freedom of conscience and church-state separation, he did engage the Massachusetts Bay theocrats on their alleged theological basis for theocracy. My book discusses this dispute in depth, especially the extended written disputations between John Cotton and Roger Williams (both ordained ministers) on scriptural interpretation. Suffice it to say that the Massachusetts Bay Congregationalists were very Old Testament; Roger Williams, in contrast, pointed to the total absence of a theocratic theory in the New Testament. Williams argued further that the theocratic indications in the Old Testament were typological and/or limited to the Jewish people under the direct leadership of God. (The latter point may have been made by Locke—who my Appendix D argues was influenced by Williams—rather than Williams; I don't remember off the top of my head. But Williams repeatedly argued that the Old Testament was typological. Cotton was the chief religious minister and architect of the Massachusetts Bay theocratic regime, though he occasionally found himself in some disagreement with the civil authorities, e.g., in the Anne Hutchinson affair.)
Roger Williams (ca. 1603-83) and his wife moved from England to New England in 1631. He revisited England in 1643-44, when he obtained the first charter for the colony of "Providence Plantations" (later "Rhode Island"). This was in the midst of the first English Civil War. Parliament was in control of the government; the king was in exile, though still at war with the Puritan parliament. At the time of this and a later (1652-54) visit, Williams had a great influence on some of the parliamentary factions and personally knew and frequently talked with Oliver Cromwell. The parliament as such did not approve of the extreme theocracy that had been established in Massachusetts Bay and told them so. The Massachusetts Bay government, however, didn't care. Their idea was to establish a "City upon a Hill"—the perfect Puritan theocracy based their interpretation of the Old Testament. They believed that England would sooner or later come around to the notion that this kind of regime was also best for themselves. Indeed, the Scottish Presbyterians put considerable pressure on the parliamentary government (by threatening to withhold military assistance against the king) to establish a theocracy similar to that of Massachusetts Bay. And Oliver Cromwell and his "pope," John Owen, eventually did establish a kind of theocratic or Erastian government.
The Separatists in Plymouth were not as bad as the Massachusetts Bay theocrats, but they nevertheless had a kind of theocracy and succumbed to the demands of the much more powerful Massachusetts Bay colony.
Wayne wrote: "The purpose then of the Establishment Clause isn't questioned. My dispute is w/ the misuse of Jefferson's metaphor - in Reynolds, Everson, and Justice Ginsburg's Dissent - which has unduly expanded this purpose. Part of the abuse is Jefferson's use of the dichotomy of "Church and State" whereas the Establishment Clause (as well as the Free Exercise Clause) instead utilizes the term "religion"; the distinction has been noted previously, and different conclusions drawn as a result. While it can be argued that the policy of Jefferson and Williams (assuming the latter was the inspiration for the former) was preferable, I still find little evidence for it being the proper basis of construction of the Establishment Clause."
I discuss these issues at length in my book. As I explain in my book, Jefferson may well have obtained his "wall of separation" metaphor from one of Williams's writings. You and I appear to disagree on matters of constitutional interpretation (I gather you are a strict originalist, and I am not). I also discuss such constitutional issues in the book. Chapters 9 and 10 are devoted to Williams's influence on the eighteenth- and early nineteenth-century US founders as well as the subsequent history of church-state relations from that time up to the present-day culture wars.
(edited with additions on 6/25/2019)
I concur w/ you on this. Generation of my paperback version for Nook Press was basically a breeze. Generating ePub versions for both Nook and Kindle was another story.I had to play around w/ them for quite awhile using various tools. I think it was Calibre on which I finally settled.
Even then the pagination and footnotes - I _liking_ *foot*notes not *end*notes - were quite unsatisfactory. Moreover, accurate reproduction of the JPG graphics in the appendices (particularly Appendix B where various lines of authority were essential to my propositions) were even more unsatisfactory.
But, ePub versions now seem necessary, as most post-Baby Boomers (as well as the last cohorts of the Boomers) probably expect them. (However, I don't want to appear to be a Reverse Ageist, since even I as a member of the Silent Generation back in the early 70s adapted to and adopted electronic advances, and am most comfortable w/ them.)
In any event, thanks for the information and I will be checking on all versions of both of your books.
Alan wrote: "You are correct that there is no Nook version. You can, however, download the Kindle for PC app for free and read it on your computer. As for Android, you can download the Kindle app on an Android cell phone, but the Kindle app does not work on Chromebook. You can access the Kindle version on the web, if you purchase the Kindle book, on Chromebook, but the Kindle web application is not as good as the regular Kindle app.
I myself am not a fan of Amazon for a number of reasons, but it is the best game in town. I have my Electoral College book on Nook as well as Kindle, but the Nook version doesn't work as well. One thing to keep in mind is that neither the Kindle nor the Nook books has the paperback pagination of any of my published books (the Kindle has location numbers, and the Nook has different Arabic pagination than the paperback). That's a long story, with which I will not bore you.
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I had to play around w/ them..."
Thanks, Wayne. The production of my Roger Williams book (2015) in paperback (Amazon CreateSpace) and Kindle (Amazon KDP) was relatively easy, because Amazon then had professional staffs that provided substantial technical assistance for both the paperback and the Kindle editions. However, when I published my Electoral College book in 2018, Amazon's professional staffs had departed, and I was basically on my own. I was able to figure out how to format and publish the paperback without too much difficulty, but the Kindle edition proved to be impossible. For many weeks I went round and round with Amazon KDP about the Kindle edition, but a succession of KDP people were unable to deal with any of my issues. I think they know how to do fiction books, but nonfiction books with endnotes, appendices, and bibliography are beyond them. They eventually told me that the publishers themselves format the Kindle nonfiction books, and KDP no longer provides such service. They finally gave me a list of outside Kindle preparation vendors, and I went with one of them, Amnet. Amnet produced an ePub (Nook) version and a Mobi (Kindle) version at a reasonable cost within a reasonable timeframe and with minimal difficulties. They also provide other book publishing services such as book design and paperback formatting, though I didn't use any of the other services. Amnet is located in India. I could not find any American companies that do this work. Evidently, this kind of thing is outsourced these days, which probably accounts for the low cost.
At Wayne's suggestion (post #168 ), I looked at Gorsuch's concurrence. I'm going to use two hypotheticals to sketch my understanding of what Gorsuch says about standing. Please correct if I'm wrong.Using its authority under article 1, section 4, Congress passes law #1: to vote, you must present evidence that you are a practicing Christian.
Alternatively, Congress passes law #2: there is no religious test to vote, but each voting booth must have a picture of Jesus Christ, so that when you vote, you do so under the
watchful eye of Jesus.
Gorsuch would say that a non-Christian would have standing to challenge law #1 as a violation of the Establishment clause. But he would say that no one has standing to challenge law #2 as a violation of the Establishment clause. A reasonable person could be offended by law #2 but being offended is not sufficient to have standing.
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I haven't studied the Gorsuch opinion, but my guess is that you are correct. Whenever I compare the Court of the past few decades (especially now) with the Warren Court, Hamlet's following remark comes to mind: "What a falling off there was!" (quoting from memory, which may be inexact).
The two (2) hypotheticals are nicely thought out. But, despite the contrast, I would tender that both in the context would be deemed, even employing Mr. Justice Gorsuch's standard, to be deemed "an establishment of religion" as incorporated pursuant to the 14th Amendment.I had started drafting a comprehensive comment, incorporating certain portions of the various opinions, to demonstrate the validity of this rejection of "offended observer" standing. However, as I was in the process of my draft, I realized it would be too voluminous for a comment here. Thus, I decided to instead draft a posting for my Blog, as it will allow me to be more inclusive. I, once I have the opportunity to do so, will post the URL for any who might be interested in it.
Suffice it for now to say that the second hypothetical would clearly be State Action and thus would trigger the Establishment Clause. Even *also* displaying images of Yahweh (if possible) or Moses, Allah (if possible) or Mohammed, Buddha, etc. would likewise do so. The objection in the concurrence to allowing "offended observer" standing is directed not to enabling State Action that might favor a particular religion, or religion in general, but to the *quantum of offense* which might allow an offense to be justiciable; the rejection of the "offended observer" criterion was of course in response to the Lemon three-prong test, a test w/ which the Court expressed extreme unease even if it did not wholly overrule it.
I can agree w/ Alan that rejection of *any* degree of offense to a religious expression would create mischief. However, acceptance of *all* degrees of offense would likewise be mischievous; this is what I understand was the concern of Mr. Justice Gorsuch.
I acknowledge that for some unknown reason the element of offense in an Establishment Clause context results in justiciability when it does not in numerous other contexts. The answer I suppose is that State Action can be inferred to have more of a coercive effect. However, is *all* purported State Action coercive? It is this problem which I believe was the reason for Mr. Justice Gorsuch focusing on what he considered to be the particular discredited prong of the Lemon test.
More to be said in my future Blog post.
Robert wrote: "At Wayne's suggestion (post #168 ), I looked at Gorsuch's concurrence. I'm going to use two hypotheticals to sketch my understanding of what Gorsuch says about standing. Please correct if I'm wrong..."
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Questions: Is not Gorsuch applying the conservative "coercion" test and rejecting Justice Sandra Day O'Connor's "endorsement" test? If the endorsement test is thrown out the window, doesn't that permit government to put pictures of Jesus et al. in voting booths? Nobody is forcing anyone to do anything. Mere offense is not enough. The deep-sixing of the endorsement test is "a consummation devoutly to be wished" for Justice Thomas and his allies (emphasis added).
1. The "coercion" language was my own. This does not appear to have been a criterion that any opinion considered.2. Neither did I observe in any of the opinions consideration of "endorsement", even in the dissent. (I however have not had the opportunity to read all of the opinions in detail.) It seems that it was assumed that it was not material whether the Roads Commission erected, or was simply maintaining, the monument. This issue is one I was trying to isolate and still plan to try to do.
I personally consider this question significant, particularly in light of the circumstances of the memorial's erection. Is a government authorized to foreclose speech or Free Exercise through the power of Eminent Domain? I would consider this prospect terrifying indeed.
3. Must endorsement be active or can it encompass inaction by the state? I doubt that any but possibly a few would argue that affirmative action by a state can constitute endorsement. Placing any pictures in a voting booth would obviously be affirmative action. If a private party forcibly entered and placed the pictures acquiescence in the trespass could be deemed action by the state by failing to remove them.
Here a private party legally erected the memorial - though whether the land was private or under a license (retroactive or prospective) from the municipality seems to be uncertain. The Roads Commission, by maintaining the memorial, was acquiescing in a predicate legal Free Exercise act. From what I have read it can only be concluded that the majority considered the remedies sought be the Plaintiff to be hostile and not neutral. I will have to study the opinions further to ascertain whether any of them explicitly considered the issue of the legal effect of allowing the memorial to deteriorate or private maintenance (Prohibiting maintenance could perhaps have been considered prohibiting Free Exercise.)
In any event the Endorsement criterion does not seem to have been controlling but whether the Lemon prong that the “principal or primary effect” “neither advances nor inhibits religion” was satisfied. It was in connection w/ this that Mr. Justice Gorsuch embarked on his "offended observer" discussion.
Alan wrote: "Disclaimer: I still have not read the Gorsuch opinion and am otherwise preoccupied right now. Accordingly, the following should be evaluated accordingly.
Questions: Is not Gorsuch applying the con..."
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2. Neither did I observe in any of the opinions consideration of "endorsement", ev..."
I have been trying to get back to working on my book on free will, but this issue is important, and I will have to consider it further. If you are going to prepare a blog post, I will wait until you do so and then comment further, if I think it is appropriate.
In the meantime, you might take a look my course materials for an October 28, 2016 CLE seminar on "Separation of Religion and Government from the 1787 U.S. Constitution to the Present."
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If you do a word search in the above-linked American Legion slip opinions, you will find numerous references to and discussions of both "coercion" and "endorsement."
Thanks for the responses (post #181).Two replies:
You say, "I acknowledge that for some unknown reason the element of offense in an Establishment Clause context results in justiciability when it does not in numerous other contexts." Being offended often comes up in a free speech context: just because someone's speech is offensive is no reason to inhibit their right to speak. But in this context, offense arises from the exercise of a fundamental right, whereas in the Establishment Clause context, government is doing something it has no right to do. The reason for this difference seems clear to me, not "unknown."
You say, "Suffice it for now to say that the second hypothetical would clearly be State Action and thus would trigger the Establishment Clause." I'm not a lawyer, so no doubt I'm missing something, but I thought these Establishment Clause cases always involved "State Action" of some sort. Granted, passing a law is a particularly direct form of "State Action," but still, what would be an Establishment Clause case in which the State was not doing something in some way?
One other thing: In these cases, it is often brought up that there cannot be anything wrong with some state/religion links that have existed for many, many years. But it seems to me that one of the glories of the US is that it has managed to put many wrongs in the rear view mirror of history. Just because something has been done for a long time is not a reason for continuing it. You need a better reason than that.
Thanks much. I acknowledge you're the expert, and I'm essentially a novice, in this area. I've downloaded the course materials and will review.I also purchased the Kindle version of "The First American Founder: Roger Williams and Freedom of Conscience" but study of it will be a more-prolonged project.
Alan wrote: "Wayne wrote: "1. The "coercion" language was my own. This does not appear to have been a criterion that any opinion considered.
2. Neither did I observe in any of the opinions consideration of "en..."
OK, I'll give that a try.Given your reference to Mr. Justice O'Connor - it seems awkward using "Mr." for her, but this seems the convention - I did afterwards do a search on "Lynch v. Donnelly" and only found 3 references, 1 in the plurality opinion and 2 in the dissent. They though were all brief allusions and none of them addressed or discussed endorsement.
Alan wrote: "Addendum to my preceding post:
If you do a word search in the above-linked American Legion slip opinions, you will find numerous references to and discussions of both "coercion" and "endorsement.""
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I also purchased the Kindle version of "The First Am..."
Thank you for downloading my book and paper. I think those items will give you some good background that most lawyers and professors don't have. The book corrects some gross misrepresentations of Roger Williams's biography, writings, and influence perpetrated by many writers (both hostile and friendly) during the last (almost) four centuries. It also explains what has occurred, historically and legally, on the church-state front since Williams's time. Some of the items in the paper were included in our respective constitutional law courses that we took long ago in law school. But it includes updates regarding developments that have occurred since that time. Even so, the paper only scratches the surface of a complicated subject.
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Given your reference to Mr. Justice O'Connor - it seems awkward using "Mr." for her, but this seems the convention - I did afterwards do a search on "Lynch v. Donnelly" a..."
A computer word search shows the word "endorsement" (in the context of Justice O'Connor's endorsement test) being used 11 times in the various opinions. However, I have not studied the discussion of endorsement in those opinions in depth.
The use of "Mr." in connection with a U.S. Supreme Court justice fell into disuse after the accession of Justice O'Connor to the Supreme Court bench.
Your comment in the first paragraph is well-taken. I suppose I should have been more explicit. Some of the Establishment Clause cases are the result of action initiated by the state, and others are the result of action initiated by a private party and acquiesced in or adopted by the state; I believe, for example, many of the Christmas creche cases are an example of the former, and the American Legion case is an example of the latter. (In all this, Alan, who is far more knowledgeable in this area than I, is of course welcome to correct me.) Accordingly, I was referencing the situation where a private party has expressed a belief - in this case the erection of the Latin Cross - the state has allowed this expression, and a third party objects on the basis of being "offended". In my view, the state's participation was de minimus.Mr. Justice Gorsuch's opinion seems to have cited substantial authority for this being an insufficient basis for Standing, though I was not familiar w/ the authorities, have had no opportunity to study them, and cannot concur or dispute on their being on point. I am of the opinion that he also took the occasion to interject a political stance - SCOTUS necessarily being a political branch, using a small "p" rather than a capital "P" - on the tragic current environment where everyone seems offended by something, and thus expounded on it so extensively.
As to your second paragraph, the degree of action by the state can vary, being overt or minimal and tangential, and thus be subject to legitimate contention as to the element of endorsement. Here, for example, the memorial was funded and erected by a private party on (at least arguably) private land, the state extended its road system to encompass the memorial and required transfer of title to the land to it to allow it seems unimpeded operation of the system, and then chose to maintain the monument; the cost of maintenance was the grounds for the Plaintiff's claim. So while here the state was "doing something in some way", it was both minimal and after-the-fact.
As to your third paragraph, this can be true both as to actions by litigants and by the courts. One of the contributors to "The Volokh Conspiracy" Blog (at reason.com) noted this week that SCOTUS in this term has been as respectful of Stare Decisis as previous terms. Yet it had the opportunity to overrule the Auer Deference doctrine and be more forthright on possible future overruling of the Chevron Deference doctrine, but regrettably refrained. But enough of this aside.
As to your primary point, the lapse of time can be material; it can indicate, among other things, that: if there has been no objection to something for an extended time, there likely is no good grounds for a contemporaneous objection; or the something has acquired multiple types of significance, some arguably illegitimate and some legitimate, and therefore should be allowed to endure. This of course was one of the rationales here.
"Cleansing" of various types has been frequent both in this and the last century (as well as in previous centuries), most accompanied by tragic consequences and many more for questionable justifications. Accordingly a Burke-type conservatism probably suggests caution in eradication of something that has been accepted by most for a long period, at least where the practice or object is the product of society action rather than overt state action. If the former, then elimination of the practice or object by the state perhaps would be "government ... doing something it has no right to do."
Robert wrote: "Thanks for the responses (post #181).
Two replies:
You say, "I acknowledge that for some unknown reason the element of offense in an Establishment Clause context results in justiciability when it..."
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The facts surrounding the current governmental ownership and maintenance of the Cross are unusual in that they involve traffic concerns, since the Cross is located in an island of a busy intersection. However, the Town of Bladensburg evidently originally owned the land and, as owner, permitted the construction of the Cross on that land. Thereafter, the Town purported to transfer the land and the Cross to the American Legion, but the parcel later reverted to the Town and then to the State by way of a condemnation proceeding. The Opinion of the Court concludes: "At least by 1961, then, both the land and the Cross were publicly owned." (Opinion of the Court [Alito] at slip opinion p. 9, n. 11.)
There has been significant governmental involvement in the ownership and maintenance of the Cross and its property from the beginning. Moreover, the Cross is understandably offensive to many non-Christians. What would be the attitude of the Religious Right and its judicial representatives if this had been a Muslim symbol in a Christian neighborhood? The opposition of the Religious Right to the construction of mosques in New York City and elsewhere answers that question. They insist that this is a "Christian nation" because we were allegedly a Christian nation at the time of the founding (they ignore the fact that most of the leading founders were Deists or Unitarians) and because majority rule, not individual constitutional rights, should be dispositive.
I don't have time to do a complete analysis of this case at this time. I will say, however, that I disagree with a Burkean approach to this matter. Burke, after all, supported an established church as well as many other practices that the US rejected early in its history. If we followed Burkean doctrine, would we not still have slavery? I have many issues with the arguments advanced in the Opinion of the Court in this case. Apart from this and my earlier post, however, I don't have time to elaborate upon them further—at least not in the near future.
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In Espinoza v. Montana Department of Revenue the court will consider a challenge over public funding for parents who opt to send their children to religious schools. The issue facing the court is whether "it violate[s] the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”
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On May 27, 2020, I will present a virtual (Zoom) lecture titled “The Architect of Freedom of Conscience and Church-State Separation: Roger Williams’s Life, Political Action, Writings, and Influence.” The following is the official notice of this lecture:
Roger Williams (ca. 1603-83) revolutionized thinking about the role government should play in religion. Banished from the Massachusetts Bay theocracy for his controversial views, he founded the town of Providence and later co-founded the colony of Rhode Island on the basis of full liberty of conscience and complete separation of government and religion. Williams also insisted, contrary to the prevailing orthodoxy, that Europeans could acquire American land only through voluntary transactions with Native Americans.I will email/message the Zoom link to all who respond “yes” or “maybe” at least one day before the scheduled lecture.
This lecture will present the story of the dramatic life, thought, and work of a man who refused to accept the conventional wisdom of his time and who forged a new way of thinking that came to characterize the best in the American tradition. Among other things, it will discuss the influence of Roger Williams on later theorists (including John Locke), the US founding generation (including Benjamin Franklin, John Adams, Thomas Jefferson, and James Madison), certain US Supreme Court justices, and other thinkers and writers up to the present day.
Alan E. Johnson, the author of The First American Founder: Roger Williams and Freedom of Conscience (Philosophia, 2015), will present this lecture, based on his book, for the Pittsburgh Freethought Community (PFC) on May 27, 2020, at 7:00 p.m., US Eastern Daylight Time. Attendance is open the public at no charge, but attendees who are not members of PFC will need to RSVP here at least 24 hours before the event in order to obtain the Zoom link.
Note: I previously posted a similar notice in the “Roger Williams” topic, and some people have already signed up for the lecture.
Alan E. Johnson
Moderator
Author and Independent Scholar
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I misspoke on a couple of occasions that are worth noting:
1. At 47:36, I used the word “established” when I should have said “adopted,” i.e. adopted at the 1787 Constitutional Convention.
2. At 48:13, I said “Williams” when I meant “Madison.”
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The following are excerpts from the U.S. Supreme Court’s syllabus (summary) of today’s decision in Espinoza v. Montana Department of Revenue. I don’t have time right now to read and summarize the case myself. The full syllabus and the actual opinions in the case can be accessed here.
The Montana Legislature established a program that grants tax credits to those who donate to organizations that award scholarships for private school tuition. To reconcile the program with a provision of the Montana Constitution that bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, §6(1), the Montana Department of Revenue promulgated “Rule 1,” which prohibited families from using the scholarships at religious schools. Three mothers who were blocked by Rule 1 from using scholarship funds for their children’s tuition at Stillwater Christian School sued the Department in state court, alleging that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen. The trial court enjoined Rule 1. Reversing, the Montana Supreme Court held that the program, unmodified by Rule 1, aided religious schools in violation of the Montana Constitution’s no-aid provision. The Court further held that the violation required invalidating the entire program.I have also posted the present comment in the “United States Constitution and Government” topic of this Goodreads group.
Held: The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.
. . . .
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. ALITO, J., and GORSUCH,
J., filed concurring opinions. GINSBURG, J., filed a dissenting opinion, in
which KAGAN, J., joined. BREYER, J., filed a dissenting opinion, in which
KAGAN, J., joined as to Part I. SOTOMAYOR, J., filed a dissenting opinion.
I sure hope so. The affirming and dissenting opinions will be very interesting. As one who is versed in the law, I hope you will comment/summarize - or at least point toward a valid/informed journalist's summary.
I'm quite sure Reason.com will do both - I will share with sufficient reminder via email.