Wall of Separation

Flast v. Cohen (1968) - Part Four: Oh No I've Said Too Much...

Issue of StandingI’ve been posting some of my rough drafts for a book I hope will be out this summer, tentatively titled “Have To” History: It Followed Her To School One Day… and with a subtitle longer than several of the actual chapters in my effort to clarify what it’s about right there on the cover while still being saucy. What started off as a one-pager for the case of Flast v. Cohen (1968) became a rambling summary of “standing” issues in church-state cases related to public education, which I’ve been sharing here as it develops.

Flast v. Cohen (1968) - Part Three: Consider This The Hint Of The Century

There were just a whole lotta cases goin' on in the half-century following Flast, all of which seemed to deal with standing in a different way. Upon closer look, however, most were in fact faithful to the Court's odd reasoning in Flast... it's just that they used that consistency to mean whatever they needed it to mean at the moment.

Flast v. Cohen (1968) – Part Two: That’s Me In The Courtroom

 Losing My ReligionIn Flast, a group of taxpayers objected to the use of public funds to provide secular textbooks for sectarian schools. The government argued that based on established precedent, they had no standing to sue. The case, then, became about standing rather than the merits of their complaint. If they weren’t qualified to bring the suit to begin with, it didn’t really matter how right or wrong they were on substance.

Flast v. Cohen (1968) - Part One: Stand in the Place Where You Sue (Think About Jurisdiction Wonder If You're Injured Now)

Three Big Things:

Stand in the Place Where You Sue

1. To bring a case before any court, one must first establish “standing.” Typically this means proving specific individual harm resulting from the actions of another and demonstrating that the offending party has the power to change whatever’s causing the harm.

2. Being a taxpayer is rarely sufficient to prove standing in the courts to complain about how one’s tax dollars are being used, even if that use is clearly unconstitutional.

3. When it comes to violations of the Establishment Clause, however, unwanted exposure to the offense is often sufficient to show standing in the eyes of the law because, well… Establishment isn’t like anything else.

What's In A Blaine?

Know Nothing Flag

While it was not always mentioned by name, several major decisions of the Court in the early 21st century very much involved the history and potential future of the “Blaine Amendment.” Blaine is a general label applied to various provisions in 37 different state constitutions limiting or prohibiting the use of state funds to support religious organizations or sectarian activity. The precise wording and application vary from state to state, and 13 states don’t have one at all. Most Blaine Amendments are actually sections or clauses in their respective state constitutions and not “amendments” at all, but the term has proven persistent. Plus, it’s used in the singular (collectively) or plural more or less interchangeably – so that’s kinda fun.

One Nation Mumbles God (Is the Pledge Constitutional?)

One Nation Mumbles God

General, brief references to the Almighty have been a part of innumerable American traditions since long before the First Amendment was an ink spot on James Madison’s parchment. It has thus been difficult at times for the Court to reconcile the proverbial “wall of separation” with a history demonstrating that the authors of the sentiment obviously didn’t mean everything. Unlike compromises over slavery or state vs. federal power, there’s no evidence the Framers willingly kicked this constitutional can down the road for their scions to sort out. They simply saw no conflict between a reasonable degree of religious acknowledgement in public life while shielding personal faith from the machinery of government. 

To Sleep, Perchance To Sue...

Mary Sleeping

This particular case involves the hiring and firing of private school teachers in religious schools. What I'm currently wrestling with is an apparent contradiction between how the Court treats private religious schools when it comes to school choice ("hey, these are just schools doing school things for valid school reasons like any other schools, except they happen to have a religious point of view... give them all the tax money or it's religious discrimination") and how it treats the same religious schools when they're firing teachers for being old or getting sick ("hey, these are religious institutions whose whole function is spreading their faith... you can't hold them accountable for anything they do or else it's religious discrimination"). Now, let me be clear – I realize it's certainly not that simple. The devil is in the--

Actually, that's probably not an appropriate idiom with this specific topic. Sorry about that.

Worth A Look: Arizona Christian STO v. Winn (2011) - from "It Followed Her To School One Day..."

The following is a first draft of one of the mini-chapters from an upcoming book covering the major "wall of separation" cases related to public education over the past century. The working title is "Have To" History: It Followed Her To School One Day...

We'll see how it actually turns out.

Worth A Look: Locke v. Davey (2004) - from "It Followed Her To School One Day..."

The following is a first draft of one of the mini-chapters from an upcoming book covering the major "wall of separation" cases related to public education over the past century. The working title is "Have To" History: It Followed Her To School One Day...

We'll see how it actually turns out.

"Have To" History Preview: Good News Club v. Milford Central School (2001)

I've been posting rough drafts from what I hope will be an upcoming book focused on Supreme Court cases related to church-state separation in public education. Some aren't cases likely to get full treatment in the book but of interest to me personally, so I ramble about them here. Others – like this one – don't require extended analysis or my trademark pithy insights, but still deserve a mention. (The final version of this one will probably be shaved by about a third to keep things readable and leave a few trees in the forests.)

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