A “Touchdown” for the Constitution

The Supreme Court concluded its last term with several blockbuster decisions. A case we will bring to focus here, Kennedy v. Bremerton School District, has been a subject of major commentary in recent years as it has worked its way up to the Supreme Court. It has continued the theme of law and religion decisions in recent years that appear to be directing Establishment Clause jurisprudence towards its original Constitutional position held before the misdirection of the mid-twentieth century.

By means of a brief recap, in Kennedy the court considered facts concerning a school district’s discharge of a high school football coach after he maintained his practice of saying a prayer in the middle of the football field following football games. His team would gather around him and sometimes would be joined by the opposing team as he led a brief and private non-denominational prayer. The players would not be required to join and there was no “quid pro quo” of being required to pray in order to be able to start. Similarly, there was no adverse actions taken towards players if they chose not to participate. It was a free-will decision to join the coach’s personal prayer. After a period of time and being unable to reach a resolution with the coach with his refusal to end the prayer practice, the school district discharged him from his position.

Arguments that arose in the mid-twentieth century in school prayer cases heavily considered the concept of “compulsion” and the detrimental impact to those who choose not to participate in prayers. These cases began to forbid non-denominational prayer in the classroom and were often premised on atheist or non-Christian students or parents that sought to push prayer in general out of the public-school classroom. These decisions had reversed a century plus of practice where non-denominational and voluntary participation of prayers were common in public schools. Later in the twentieth century, the focus than turned to forbidding prayers and benedictions at public school graduation ceremonies. None of these avenues was a coherent interpretation of the intent of the Establishment Clause.

The Establishment Clause was enacted to avoid the problematic issues created in England when the Church of England dominated the government and society by also forcing out and in some instances persecuting members of other faith traditions whether those traditions be other Christian denominations or other religions. The U.S. government was not to venture into the same theocracy territory. In fact, many of the first settlers in the colonies arrived due to religious persecution in England. The U.S. was not going to adopt a model where there is a state-run church with the President as the head.

While the framers did not want to invite theocracy to be the standard of government in the new nation, they also did not want to push religion out of every aspect of the public realm which is what has been attempted in recent decades. The early colonists did in fact permit prayer in school and it has been a practice for faith-based chaplains to open up government meetings throughout the country. The House of Representatives and Senate maintain a chaplain. Religious entities have also been the beneficiary of tax breaks and recently the Supreme Court has ruled that state forms of discrimination against religious schools and families for scholarship grants that come from tax-payer funding are unconstitutional. There are many examples of how religious interests continue to be present in the governmental practice of our nation even though it has not led to any form of theocracy.

The Supreme Court ruled in Kennedy v. Bremerton that the school district was discriminating against Coach Kennedy and violated his Free Speech and Free Exercise rights. In his majority opinion, Justice Gorsuch emphasized that there was no evidence in the factual record to indicate that the players were compelled to participate in this personal prayer after the game. It is unconstitutional to target religious observances in this manner as the school district did in this case. Kennedy was specifically singled out because the character of his expressions was religious in nature.

This case is a stepping-stone in the right direction and brings optimism to the legal initiative to begin correcting the failures of the prior Supreme Court rulings of the twentieth century that severely constrained and challenged religious expression in the public sphere. While those original school prayer cases that were wrongly decided have not yet been overturned, there will be ample opportunity to build off the Kennedy v. Bremerton victory to perhaps now consider cases with religious expression after class in school. For decades, the Establishment Clause has been wrongly used as a decisive broom to sweep away religious interests without any Constitutional basis in text or from the original intent of the First Amendment.

We should be grateful that the Supreme Court is revisiting this issue and considering the original intent of how the framers sought to harmonize religious interests with the Constitution.

SCOTUS Bringing Democracy To “Life”

The Supreme Court completed its term and its ending was one that will be studied for generations. It was ripe with Constitutionalist decisions and correcting the activist errors of prior cases that were decided by the Court decades ago. In this piece, we will provide a brief overview of Dobbs v. Jackson Women’s Health Organization which overturned Roe v. Wade and Planned Parenthood v. Casey.

We have written in depth about Roe v. Wade and Planned Parenthood v. Casey in prior articles. By means of a brief recap, in Roe, the Supreme Court ruled that there was a right to abortion under the Constitution and heavily relied upon the 14th Amendment Due Process Clause. Abortion does not appear in the Constitution, yet the Supreme Court read it in as a “right”. It considered a trimester framework to assess at which point in the pregnancy the state would have an interest in regulating this manufactured Constitutional right to abortion. As a result of this decision, the diverse state laws addressing the legalization of abortion were invalidated. Prior to this decision, the concept of legalization was addressed in state legislatures for over 100 years, not considered under U.S Constitutional law. Planned Parenthood v. Casey reaffirmed the right to abortion under the Constitution, but replaced the trimester framework with a vague “undue burden standard” to adjudicate when a state law was placing an undue burden on a woman seeking an abortion. Since Roe, abortion has been a highly controversial issue nationwide.

The impact of the Dobbs decision now brings an authentic spirit of democratic debate before the American populace in returning the issue of legalization of abortion back to the state legislatures. The issues in Dobbs were whether a Mississippi law that had banned abortion after 15 weeks was Constitutional and also whether the Supreme Court would overturn Roe and Casey. In the majority opinion written by Justice Samuel Alito, the Court decided to overturn Roe and Casey and stated that abortion was not Constitutionally protected and used several traditionalist examples of the history of state law regarding the issue to emphasize the importance of state interests to resolve this profound moral question. It returned the issue of abortion back to the states and was highly critical of the reasoning in Roe that applied the 14th Amendment Due Process Clause to invent a Constitutional right to abortion.

In response to Dobbs, states have taken different paths with regards to the issue with some banning abortion and others maintaining it. Debate will now be confined to state legislatures and democracy, no longer reliant on the Supreme Court to stretch its role and assume legislative capacities to quash the appropriate democratic framework of the debate.

The dissent attempted to present Justice Alito’s reasoning as faulty and used the Loving v. Virginia (striking down laws banning interracial marriages) decision. The dissent stated that Loving relied on the 14th Amendment and that the enactors of that amendment would not have foreseen that it would have given blacks and whites the right to marry. The dissent’s arguments, however, are misplaced as the 14th Amendment was enacted with the racial backdrop of a nation emerging from the Civil War. It can be argued that Loving was a natural descendant of the philosophy behind the 14th Amendment whereas abortion was not. Abortion was not at issue upon enactment of the 14th Amendment, thus relying on this to support legalizing abortion as a matter of Constitutional law does not have a strong traditionalist foundation. There is also been no viable attempt to amend the Constitution to recognize abortion as a formal matter of Constitutional law.

The Supreme Court erred by taking Roe and bringing this case to the forefront of the nation’s views on the Supreme Court. From consistent public opinion headlines to dominating Supreme Court judicial confirmation hearings, this issue has created nothing more than an unnecessary distraction that detracts from the role of the Supreme Court.

Federalist 78 helps inform us as to how the framers viewed the role of judges as the Constitution was being enacted. It stated as follows with regards to the judiciary:

“It may truly be said to have neither FORCE nor WILL, but merely judgment;”

For decades, the nation has not favorably responded to the Supreme Court’s misplaced “force and will” that created a divisive discourse on abortion that in turn harmed the institution of the Supreme Court. Now that the previous errors have been corrected, the nation must begin its healing process and recognize state democratic interests on profound moral issues.

Unfortunately, in response to the decision, the media has sensationalized the issue and is supported by influential figures in the nation during its quest. The common theme has been a misguided promulgation that this decision is an attack on women’s rights and a call for Supreme Court institutional reform to expand the Supreme Court. Some have argued for Congressional action to circumvent the decision and others have called for abortion to be done on federal lands. All of this in response to a victory for democracy and restoration of judicial boundaries on this issue is deeply troubling.

Furthermore, judges in the majority have been threatened at their homes and where they are dining by an unruly mob of individuals violating federal law in attempting to intimidate judges. The blatant disrespect and ignorance for the rule of law constitutes nothing more than the erosion of the societal framework of our nation. The moment is here for a greater calling to education including on fundamentals such as the separation of powers of government in Constitutional law and how freedom of speech does not equivocate to “freedom to harass”.  Churches and pro-life centers that have sought to help women in need have also been attacked and graffitied. Much of this unrest can begin to recede if facts and reason triumph over emotional directives. Perhaps a push for transparency as to those entities that benefit the most from the wide-spread availability of abortion services such as corporations and those with political careers that have developed close bonds with various lobbyists throughout the years in DC. A public awareness campaign on some of these issues may bring a better balance to the discourse and ultimately bring about a more informed populace that will be equipped with the facts they need for reasoned and informed debate on the issue.

As a nation, we should be grateful for the courage the Supreme Court showed in Dobbs and the willingness to place its Constitutionally assigned judgment duty rather than legislative action at the forefront of its role as rightly intended by our framers.

Structural Leakage at SCOTUS

As the Supreme Court prepares to hand down some major decisions at the end of June on several major issues including the Establishment Clause, the Second Amendment and abortion among others we should consider a very active threat to the institution that is the Supreme Court. Earlier this Spring, there was a leaked draft of a majority opinion that was written by Justice Samuel Alito in February that was released to the media. The draft opinion as written would overturn the landmark abortion cases, Roe v. Wade and Planned Parenthood v. Casey. We have discussed these cases in depth in prior articles, however, it came as a bit of a surprise that more than likely there was a conference vote majority to overturn both these cases, thus leading to an early draft majority opinion indicating same. An early prediction was an incrementalist opinion that upheld the restrictive Mississippi abortion law at issue, but preserved Roe at present while amending the Casey legal analysis.

Supreme Court procedure holds that if the Chief Justice is in the majority, he can assign the majority opinion to himself or to another justice in the majority. If the Chief is in dissent, the senior most justice in the majority, in this case Justice Thomas may assign it to himself or another justice. It is probable that Justice Thomas was in the majority and assigned it to Justice Alito. This draft likely has underwent several changes and is not final as judges can change their vote and join or dissent from specific opinions. The Alito draft could have reflected the legal analysis and sentiment of the majority at that time or could have been an early draft that was bound for revision, but sought to address some of the major issues in this case on the onset as a starting point for negotiations among the justices in the majority.

The nation, however, should express serious concern that this draft was leaked whether or not it will be the majority opinion. The issue of abortion is widely debated in this nation and the source of the leak clearly intended to insert undue and inappropriate pressure on the justices and the legal process. Knowing how controversial this issue is and the sensitivity of the issue, justices’ families were put in the cross-hairs by unruly protests near their residences in violation of federal law once the leak was made public. Additionally, churches were threatened and required extra safety precautions out of concern for the safety of their congregants and worship grounds. Leaking the draft sent the clear message “either vote how we want or suffer the consequences” and threatening to replace Constitutional Law with Mob Law.

No matter the ideological inclinations of jurists, they should be left to do their job peacefully and independently. The judicial branch serves as a check and its primary focus is the defense of the Constitution, not answering to democratic interests like the legislative and executive branch. The irony that exists if Roe and Casey are overturned is that the Supreme Court itself is relinquishing power it should not have assumed with regards to the regulation of abortion and returning it to democratic interests and debate where it belongs.

If those so opposed to the concept of an independent judiciary were to prevail on this issue and substantially alter the direction of the court with external influence, it would have a long-term detrimental impact to the Supreme Court as an institution. Imagine a court where parties believe they will always have a persistent disadvantage because an external society interest could interfere with the fair and thoughtful adjudication of their matter. This type of behavior is a threat to the Supreme Court and the rule of law and should not be tolerated. Structural leakage at this level will in turn lead to the drowning of our society into an ocean of mob rule. The leak needs to be plugged before its too late.

Faithful Lessons from the COVID Law and Religion Litigation

As the nation begins to formally recover from the burdensome government regulations imposed these last few years with the COVID-19 pandemic, we must be careful to not venture down the same path should this nation experience another pandemic. Individual liberties, livelihood and religious interests were put on the backburner in defiance of the Constitution. Governors and mayors in big cities in various states abused their leadership positions with lockdowns and restrictions that did not consider all the viable Constitutional and scientific interests. We reflect briefly on some points of interest and encourage our leaders and courts to take notice of these issues so we can identify these infringements on Constitutional liberties.

COVID and Equal Protection- Churches

Diocese of Brooklyn v. Cuomo

Former New York governor Andrew Cuomo issued an executive order limiting attendance at worship services based on zones allegedly determined by COVID rates that did not apply to other entities such as liquor stores and grocery stores. The Diocese of Brooklyn brought suit due to unfair restrictions placed on churches compared to other entities and sought a preliminary injunction to stop its enforcement. In its majority opinion, the Supreme Court concluded that the executive order was not neutral by nature and unjustly targeted religious interests. It would not survive strict scrutiny of government imposed limits on enumerated First Amendment and Fourteenth Amendment rights and was not narrowly tailored to properly serve the government interest of public health.

COVID and Healthcare Workers

Dr. A v. Hochul

Former New York governor Andrew Cuomo signed into law a vaccine mandate for the state healthcare workers that allowed for religious exemptions and medical exemptions. New governor Kathy Hochul came into office and removed the religious exemptions while maintaining the medical exemptions. The healthcare workers were forced to vaccinate or risk losing their jobs. Doctors and nurses petitioned the U.S. Supreme Court for emergency relief and were denied in a 6-3 decision. The Court was persuaded by the reasoning that the COVID-19 vaccination requirement was similar to that of other common vaccination requirements such as measles and rubella. Additionally, New York cited examples of faith leaders and religious teachings that it perceived to indicate that there was no religious and ethical quandary if being vaccinated for COVID-19.

This argument New York presented could be construed to be especially troubling as it waded into the area of assessing the validity of faith belief. While it cited to statements made by Pope Francis among other leaders, it did not provide a comprehensive outline of Catholic teaching that also finds that there is not an ethical quandary if you choose not to be vaccinated. Catholicism allows for free will considerations. The state put forth information that is not harmonious with comprehensive bioethical considerations that could plausibly form a complete legal position on matters of faith.

Seeds of Discord

Another serious point to consider is that because the debate did in fact breach the parameters of essentially “adjudicating authentic faith belief”, a precedent is in fact presented that could conceivably be used if Christianity or Catholic belief interests come under assault in other areas such as discrimination.

For example, it is possible, more specifically on the issue of family and marriage. There are Protestant congregations that may teach a more confined and traditional view of marriage under the same broader umbrella label as “Episcopalian” or “Methodist” as other congregations that do not advocate for a more traditional definition. If there were to be a case with a small business owner that harbors objections, but was under the general term of one of the Protestant denominations, which teaching would the court follow or be persuaded by? It could set up a faith battle with lay civil servants adjudicating matters that are in dispute within faith sects. A troubling pattern can begin to form, thus setting up further and more heated conflicts between religion and government.


We must be watchful of the troubling actions taken by state leaders that were not reigned in by our judiciary and most importantly the seemingly unbridled deference that courts throughout the nation gave to governors that were not prepared for a serious public emergency. The panic that ensued from COVID-19 and the overly strict actions that have threatened equal protection interests and individual liberty must be recognized and perhaps addressed legislatively to place ample checks on government so a proper balance is struck with regard to proper safety considerations and individual liberty.

Coaching but Not Coercing at the Highest Level

The U.S Supreme Court has granted certiorari on a case we reported on in 2019, Kennedy v. Bremerton School District (Case No. 21-418), regarding a football coach that was placed on administrative leave after he prayed at the center of a field after a football game he coached. He was then formally discharged from employment when he refused the school district’s directive to only pray “where he could not be seen.”

Coach Joe Kennedy of a Washington state high school began the tradition of kneeling for a short prayer at the end of every game. Members of both teams would join and this would also promote a good spirit of sportsmanship among the young athletes. His local school district later suspended and fired him for violation of district policy. The reasoning the school district used was:

“‘(T)hat petitioner, in praying on the field after the game, neglected his responsibility to supervise what his players were doing at that time and, second, that petitioner’s conduct would lead a reasonable observer to think that the district was endorsing religion because he had prayed while “on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees.”’

A few years ago the Supreme Court did not grant certiorari, but left the door open for the matter to be accepted at a later time and now certiorari has been granted. This case presents a very good opportunity for the Supreme Court to reform its controversial Establishment Clause jurisprudence from the middle to late twentieth century that greatly scaled back recognizing religious prayer life in the public square, most specifically connected to the educational context. The decisions of the Supreme Court in these cases greatly distorted the meaning of the Establishment Clause. Some major cases in the educational context include Lee v. Weisman____ U.S.____, 112 S.Ct. 2649 (1992); School Dist. of Abington Township v. Shempp, 374 U.S. 203 (1963) and Engel v. Vitale, 370 U.S. 421 (1962).

Lee v. Weisman would be a viable candidate to be revisited and is one of the more modern cases that gravely misinterpreted the Establishment Clause. There, nonsectarian prayer at a public school graduation was found to have violated the Establishment Clause because of its alleged coercive effect on students and attendees and the appearance of a communicated government endorsement of religion from the public school. On the merits this decision does not have a firm anchor in the text of the Constitution nor tradition of the nation since the founding. A prayer at a public school event that is nonsectarian in nature is not placing any demands on students or attendees to be participants in a structured religious belief nor punishing those that choose to not embrace a religious lifestyle. It is merely a non-denominational religious expression not requiring faithful adherence to tenants of faith, but rather an expressive statement recognizing a faith belief and gratitude for those that choose to believe it. The Establishment Clause was intended to forbid a state run church from dominating the nation such as the Church of England not to prohibit non-denominational religious expression in the public sphere.

The present matter at issue does have differences with Lee as the facts in Kennedy concerned a coach praying on his own accord after a football game was completed, not during an active gathering such as a graduation. The issue of psycho-coercion, however, is a common thread through these cases.The Supreme Court should consider scaling down deference to this view of the Establishment Clause as it presents a grave barrier to the interpretation of the Establishment Clause consistent with the framer’s intent. 

The players and coaches on either team individually made the decision to join the prayer after the school sponsored sporting event. There is also no evidence in the factual record to indicate that players who did not participate or reluctantly participated were unduly prejudiced. 

It may be helpful to consider a sequence where a teacher chooses to offer a lunch prayer grace in the cafeteria and students interested in offering prayers sought to join him or her. The teacher is in a school building surrounded by several students in a cafeteria, thus the School District must consider just how far its policy covers. Lunch and post-game activities are not active performances of job responsibilities, thus there is a question as to just how far the district policy and the understanding of psycho-coercion extends.

We anticipate that the coach will be successful and the School District will be forced to reconsider its policy. We will continue to follow this matter very closely.

Standing Against Media and Sensationalist Interference with the Judiciary


Federalist 78 was written by “Publius”, who we commonly recognize as Alexander Hamilton, one of our nation’s greatest founding fathers. A simple phrase from it captures the essence of the framer’s intent with regards to the judiciary. “It may truly be said to have neither FORCE nor WILL, but merely judgment.” Furthermore, the Constitution provides safeguards that reflect the intent of the framers to preserve the independence of the judiciary and isolate it from the political sentiment of any given timeframe. Examples of this include the life tenure of the federal judiciary and the justices not being subject to direct voting from the population like an elected representative. Rather, the President must nominate the justice with the advice and consent of the senate and the senate must approve the justice with a simple majority.  

The framers did not want the Supreme Court to be treated like a legislative entity and rubber stamp on societal sentiment. Its role is to strictly interpret the Constitution in order to adjudicate the disputes before it. Recently, the Supreme Court and its justices have been the target of sensationalist journalism specifically with regards to the Dobbs matter that will be decided in June that concerned a proposed Mississippi law that prohibits most abortions following 15 weeks of pregnancy. Much of the pundits in the media have written various headlines claiming the end for Roe is near and that the Supreme Court is opposing women’s rights. Some media power players have even captured commentary from women that have been “proud” to have an abortion. Others have put forth alleged population polling indicating wide-spread support for the continuing legalization of abortion.  

These are just few of many examples of unjustified and sensationalist commentary on the Supreme Court. All of these common points have a faulty premise as they assume that court decisions on abortion are to be democratically decided and if the Court does not side with supposed public sentiment the entire framework of the Court must be destabilized. These forms of behavior and unnerving commentary have been detrimental to our nation. The role of the Constitution is consistently ignored in all of these arguments. Stepping aside from the merits of the case which we have discussed in-depth in prior articles, the concept of pressuring justices on any decision is well outside the intent of the framers and imbalances our intended separation of powers. The judiciary provides a check on legislative and executive action with its adjudication of major disputes invoking Constitutional matters. It is not meant to be a political branch or subservient to media power players, but rather beholden to the Constitution and the Constitution alone. 

Writing and commentary from media talking heads and politicians that approach the appearance of pressure on the judiciary should be challenged. Our country is consistently being filled with distorting narratives that only create confusion and ripe seeds of division while taking advantage of those that are otherwise not learned in civics and the history of the nation. 

We deserve better and should demand better from the leaders and influencers in society. Let the judiciary carry out its judgment authority indepedendent from the “will” and “force” of the media. Is that too Hamiltonian to ask?

The Private Religious School Case at SCOTUS and “Establish”ing School Funding Reform

An upcoming major Supreme Court case, Carson v. Makin, concerns an education policy in the state of Maine that prohibits public tax money in the form of financial aid from going towards tuition of students in private religious schools. Parents have brought suit. This case will likely provide the Supreme Court with an opportunity for further clarification as to the relationship between government and religious interests.  

The debate over religious funding is not a new concept to the Supreme Court as in recent years the Supreme Court has heard the Trinity Lutheran and Espinoza matters. As a recap, Trinity Lutheran concerned church access to public funding to sustain its recreational grounds. There, the Supreme Court held that the state cannot discriminate against a religious institution in granting them access to the funds.  

In Espinoza, the Supreme Court considered a Montana tax-credit program that allowed for scholarship funding for private schools. Montana’s constitution barred any payment to religious institutions and schools. The Montana Supreme Court invalidated the program entirely to prevent religious schools from receiving the funding. The U.S.  Supreme Court held that the state cannot discriminate against private schools that were religious in nature as it constituted a violation of their Free Exercise rights. The U.S. Supreme Court invalidated the decision of the Montana Supreme Court. 

Following these two major cases, the Carson matter builds off the issues of public funding towards religious institutions. Here, it appears that the Supreme Court would be inclined to rule in favor of the parents who brought this suit and seek to have access to public financial aid for private religious schools based on the recent precedent in the religious funding cases. We do note, however, that there are alternate paths to come out in favor of the parents and invalidate the state’s measure that clearly shows animus towards religion. At the Supreme Court, a plausible deciding factor will be how narrow or broad the Court wants to rule in the parents’ favor and the degree of willingness to address long-standing law and religion debates at the Supreme Court.

The most natural reading to address Carson could possibly be through applying the Establishment Clause. Chief Justice Roberts, however, may be reluctant to go in this direction with its potential for a wider impact on Establishment Clause jurisprudence. For institutionalist concerns it is not unrealistic for him to seek more justices across a wide range of ideological spectrums to join a narrower opinion based on the Free Exercise Clause. If he is in the majority, he has the discretion to compose the opinion or assign it to another justice, thus it is unlikely you will see an Establishment Clause based majority opinion from a stricter constitutionalist such as Justice Thomas. 

The more natural Establishment Clause based opinion, however, void of institutionalist concerns would likely consider the following principles. The Establishment Clause in the First Amendment is as follows: 

“Congress shall make no law respecting an establishment of religion. . .” 

On its face, tax money to support students attending private religious schools does not infringe on the spirit of the Establishment Clause. First, religious schools are just a form of private school and there are allocations already going towards secular private schools, thus exclusion of private religious schools could be viewed as discriminatory. Second, religious schools are broad in nature, not specifying a form of religion that would benefit from the financial aid supported by tax revenue. The state is not promoting a specific religious establishment likened to the Puritan or Anglican style in the early foundations of the nation rather it is supporting the private religious education experience as a general matter in conjunction with other forms of valid education. It does not constitute a state endorsement of a particular religion or creed rather it is simply state supported among other educational initiatives. 

This case also provides an opportunity to reform if not overturn the Lemon test that has been largely abandoned with the Roberts Court, although not explicitly overruled. This test, derived from the 1971 case, Lemon v. Kurtzman provides that legislation concerning religion must (1) have a secular legislative purpose; (2) the principal and primary effect of the statute must neither advance nor inhibit religion and (3) the statute must not result in an excessive government entanglement with religion .

The Lemon test is filled with contradiction especially when considering prongs (1) and (2). The law at issue must have a secular legislative purpose in prong 1, however in prong 2 the principal and primary effect of the statute may not inhibit religion. To put things in perspective, if a secular purpose is paramount, by its very nature it is restricting influences of religion from other sources, most specifically under the Carson facts when considering the role of education. The Maine policy expressly refused to offer parents of students any religious affiliated private school benefits with regard to financial aid. This is discriminatory and inhibits religion based on the “staple” secular intent of the policy. The original understanding of the Establishment Clause was to discourage a state religion that controlled levels of government such as the Church of England and forms of theocracy. The allowance of public funding to support private school financial aid does not pose a threat to the government system it is simply helping provide equal education opportunities. In the twentieth century, the Supreme Court refused to recognize this core original understanding of the Establishment Clause of not compelling or promoting a state religion and used as its vehicle the school prayers cases and cases involving school transportation to begin selectively ushering faith out of the public forum based on misconstrued separationist principles. 

Finally, the third prong of the Lemon test is very vague in nature as it discusses excessive government entanglement. This pong is not pointed and specified and gives the judiciary a blank check to undermine the intent and principles bound in the Establishment Clause if the government becomes “too relational” with religion. Here, this concept creates a further cloud when considering religious education. Private religious schools do have religion as part of the curriculum, however, the staples of other areas such as math, science, history and writing are also within the curriculum and resemble the public education experience. Supporting a religious school does not create an excessive entanglement with the concept of religion in of itself, it is first and foremost supporting an educational initiative that contains a religious component, not one that is actively promoting and threatening a theocracy and “government” sponsored church. 

Despite the principled objections to the Lemon test and opportunity in Carson to reform the error filled plague that stemmed from the Supreme Court jurisprudence on the Establishment Clause, the Free Exercise Clause poses a more likely means for the Supreme Court to address Carson as it presents a less controversial approach.  

A Free Exercise opinion would likely not depart significantly from the recent Espinoza legal precedent which based its reasoning to invalidate religious education disabilities propounded by the state on the concept of “protecting religious observers against unequal treatment” and against “laws that impose specific disabilities on the basis of religious status.” As discussed earlier, Espinoza relied on some of the reasoning from the Trinity Lutheran decision, namely that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character imposes a penalty on the Free Exercise of religion that triggers the most exacting scrutiny.” 

This reasoning that invokes language discussing the discrimination towards religion provides a plausible resolution when addressing the state’s attacks against institutions related to faith, however, it is approaching the issue from a more indirect view. While Catholic schools are institutions that exist to allow for an atmosphere of faith to be incorporated into a broader educational curriculum, the actions of the government are not directly stopping them from articulating their mission, rather the government is failing to tender a public benefit based upon a misconstrued view of church and state relations. It is not providing a public resource from which they should be entitled to, but it is not preventing them from having the right to provide an educational experience for students. This dispute would be best adjudicated under the previously discussed Establishment Clause doctrine. A clearer Free Exercise analysis should be applied to the small business and bakery matters where the state is threatening the existence of the business and saddling it with fines and lawsuits based on its faith beliefs. This is not at issue here, but the expansion of the Free Exercise Clause by Chief Justice Roberts may in fact further gain traction in this opinion because it would not upend decades of failed Establishment Clause jurisprudence and gain more support from the moderate and liberal justices on the Court. 

While it is unlikely to be addressed here, the Establishment Clause analysis provides a more comprehensive foundation and clarifies that public financial aid to be allotted towards educational advancement in private religious schools should not be construed as a state endorsement of a religion or creed.  It is, however, supporting parents and students in the holistic sense with supporting general educational initiatives that include a religious component. Returning to this basic principle would in fact begin to positively reform our Establishment Clause jurisprudence and return it to its original intent while making strides to remove religion as a target of discrimination in the public forum. 


A Problem That Could Have Been Avoided- The Supreme Court and Abortion

The Supreme Court is taking on a loaded term this year with addressing blockbuster abortion challenges. Two challenges of note include adjudicating the Texas abortion law to assess if it was valid for the state to confer a private form of action (non-governmental) to challenge the practice of abortion after 6 weeks of pregnancy. The second matter will address a Mississippi law that bans abortion after 15 weeks. These are major cases and the most compelling opportunities to significantly address abortion jurisprudence since Planned Parenthood v. Casey and prior to that, the landmark case, Roe v. Wade

In this piece, we consider the foundation of abortion jurisprudence and how the controversy it presents today could have been avoided if the Supreme Court had not moved outside its boundaries. This coupled with media sensationalism and dishonest statements from politicians have led to a population misled on this issue.

We begin with the state laws in existence prior to Roe v. Wade. Today, a common argument of abortion rights advocates is centered around “the health of the mother” and “cases of rape” as validating their position. Prior to Roe, much of the states enacted state law provisions that carried such language when addressing the extent of permissive abortion. When Roe v. Wade was decided it invalidated all those state laws. The issue of abortion was traditionally handled by states. In looking at the nation’s heterogeneous culture filled with various beliefs and creeds this was not an unreasonable position. Most importantly, the issue of abortion was not addressed in the Constitution nor did it address the position as to what point life begins.  

When the Supreme Court agreed to hear Roe, it took up a question that was beyond the scope of legitimate U.S. Constitutional parameters. The method to address the issue of abortion at a federal level would have been through the amendment process rather than the “reading in” of seven justices at the Supreme Court of this Constitutional “right”.  In essence, these justices assumed positions outside of their expertise by creating the initial framework, not only formally validating it as a matter of U.S. Constitutional law but then dictating when states can exercise an “interest” at specified stages during the pregnancy to regulate the practice of abortion.

From a structural standpoint, one could legitimately question why the amendment process was not pursued to address the issue of abortion. In basic terms, Article V of the Constitution states the process required which includes several rigorous provisions by design. It requires 2/3 of both Houses of Congress or 2/3 of state legislatures to enact a Convention addressing the potential amendments. After proposal, it would take 3/4 of the states to ratify before it is added to the Constitution. The Constitution is the paramount source of power upon which our government is organized and structured to govern the nation. There was good reason why the framers by design made the Constitution very difficult to amend. When it was to be amended in due course at various moments in our nation’s history, the measure prior to enactment reflected a comfortable majority of state interests in the nation. The abortion “right” as presently interpreted by the Supreme Court does not carry a comfortable majority of states.  An amendment would likely not have passed that would in fact recognize this “right” under the U.S. Constitution in the way the Supreme Court has mandated at present. 

There is meaning in the understanding that recognizing the “right” that was not initially addressed in the Constitution was unable to reach the 2/3 and 3/4 thresholds required of the Article V amendment process. If a “right” of this nature was not to gather this super-majority of support in the nation, it was best left to local and regional democratic processes. 

The Supreme Court may have ascertained that it would be “settling” the issue once and for all, but it has not. The issue remains as divisive as ever, from consuming countless sources of media coverage to being a “litmus test” at Supreme Court confirmation hearings thanks to the sensationalist introduction and disorder brought about by the late Senator Ted Kennedy during the Robert Bork hearings. The hearings since then have placed this issue at the forefront of deliberations. Instead of weighing if someone is qualified to be a jurist on the Supreme Court by weighing their legal philosophy and nuanced understanding of interpreting law at the hearings, the media has recklessly portrayed the hearings in many cases to be an up or down vote on abortion that is funded by many special interest groups promoting expensive ads and often misleading the public. It has become a cultural obsession that did not need to be and it has wasted countless resources and opportunities for civic growth and understanding of what the Constitution means and the role of judges.  

Building off Roe, the last major blockbuster case dealing with the substance of the abortion “right” was Planned Parenthood v. Casey, that dealt with a Pennsylvania law seeking to place restrictions on abortion. Some highlights of the law included informed consent prior to abortion procedure, spousal notice and parental consent.  Spousal notice was invalidated but the other two provisions were upheld. The Supreme Court most significantly also revised the Roe trimester standard that had addressed a state’s level of interest throughout the pregnancy and created the undue burden standard that is the governing law today. The undue burden standard focuses on deeming a state regulation unconstitutional when it places an undue burden on the path of a woman seeking an abortion of a nonviable fetus. It also further elaborated that a law would be invalidated if the state purportedly is furthering the interest of the “potential life” and as a result places a substantial obstacle in the path of a woman’s access to the “fundamental right” to make her own decision. With modern technology advancing, the viability and undue burden framework posed in Casey is the target of the Mississippi and Texas laws. As these cases are decided, we will be providing insight on their outcome and resulting impact on abortion jurisprudence. 

In sum, the Supreme Court cultivated the battlefield for divisive societal division on the issue of abortion when it decided the Roe and Casey cases. A forceful declaration as a matter of U.S. Constitutional law on the “right” and ensuing determinative way to interpret when life begins has consumed our society with unhealthy controversy and discourse. The Supreme Court has an opportunity to correct some of the wrongs of its past with the Texas and Mississippi cases by beginning to rightfully decentralize its authority on this issue and leaving it to state and local communities to provide guidance. 

American Heroes in Spotlight: Andrew McClary and Bunker Hill

Andrew McClary was one of the early great leaders in the American Revolution and his patriotic sacrifice should be taught and appreciated today.

By way of background, he grew up in an immigrant Irish family in New Hampshire and eventually worked his way up the rungs of the New Hampshire colonial society and became a town clerk and local leader. He operated a tavern on family farming property with his father that was the hub of social activity in Epsom, New Hampshire and had an acute understanding of business.

As neighboring Indian tribes threatened the colonial settlement and local towns, he eventually ventured into leading missions to track and find the Indians in the surrounding areas. The people looked up to him and trusted him as he sought to keep them safe by engaging in militia activity for the New Hampshire Rangers. During the French and Indian War he developed his tracking skills to help the locals defend their towns and families. He aggressively pursued the threatening Indian tribes with the skills he cultivated.

As a business operator in the social hub in the town, McClary also openly provided a forum for dialogue and commentary regarding the upcoming Revolution among the locals. In October 1774, King George III had issued an order restricting the export of arms and powder to the colonies. The colonists had begun to take action in response and in December 1774, six months prior to the Battle of Bunker Hill, McClary helped lead a raid at Fort William & Mary (also known as “The Castle”) in New Castle, New Hampshire that was near the Portsmouth Harbor. The patriots had ascertained that an upcoming major conflict with Great Britain was on the horizon and during the raid had captured gunpowder and cannons for their communities.

In April 1775, McClary was tending to his farmland when he was notified that the burgeoning conflict with the British forces was growing closer to New Hampshire after the Battles of Lexington and Concord in neighboring Massachusetts. He organized his local militia to join with other colonial pockets and they embarked on their mission to join forces at the looming Battle of Bunker Hill, in what would come to be one of the early major battles in the American Revolution.

During the Battle of Bunker Hill, McClary served as a major. There are accounts that during the Battle of Bunker Hill, McClary emerged as a fiery and strong leader of his men while galvanizing them to fight with courage. He emphasized to his men to target the British officers in battle so as to force the Redcoats into confusion and endure unexpected losses at the hands of an impassioned American force. This would be a battle in which the Redcoats would in fact suffer heavy losses to their officers despite winning from a strategic view. It would help usher in a new method of warfare that would become prevalent during the American Revolution. There was a drift away from the organized and formal militaristic battle sequences that the British were most familiar with at times of war. The targeting of officers and crafty fighting style of the Americans would become a major part of the American military tradition.

Following the battle, McClary began to tend to the wounded American soldiers during the retreat. After helping for some time, he returned to the area near where the Battle of Bunker Hill was fought to continue with reconnaissance and track the British. He made observations and was on his way to other officers to discuss his findings with them when a stray canon ball from a nearby frigate mortally wounded him. He was given the proper respects and was remembered as a hero and the highest officer to sacrifice his life at the Battle of Bunker Hill.

Fort McClary in Maine is named after Andrew McClary and a memorial is present in Epsom, New Hampshire that commemorates his patriotic and heroic legacy. We reflect on his sacrifice for our country and will continue to spotlight heroes in American history.

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Expansive Government in Commerce Clause History

By: Chris Gomez

The Commerce Clause was the product of ingenious foresight by our Founding Fathers to create an ability for the federal government to be the arbiter of interstate and foreign trade. As an enumerated power in Article 1, Congress was granted these powers. As our nation has developed, however, the judiciary has upheld varying interpretations of it. In this piece, we touch on some historical background of the Commerce Clause. In some matters, the judiciary has erred in its interpretations and as a result created an infringement on the rights of citizens.

To begin, we reflect on the seminal case of Gibbons v. Ogden (1824), where the Supreme Court ruled that a New York monopoly over permits for a ferry business between states was unconstitutional. An individual obtained a federal permit to run his ferries between the ports of New Jersey and New York which ran against a New York law granting a monopoly over these routes to a select group of businessmen. The Supreme Court interpreted this as a violation of the powers granted to Congress under the Commerce Clause and ruled New York was not entitled to a monopoly in this area. The power to regulate navigation within interstate commerce was in the domain of Congress as enumerated by the Commerce Clause. This interpretation of the Commerce Clause was harmonious with Constitutional principles. It correctly reflected a proper use of the federal government’s power to regulate in this area.

Moving forward to the 1930s and 1940s we reflect on two major cases during President Franklin D. Roosevelt’s New Deal era. First, is the case of NLRB v. Jones and Laughlin Steel Corp (1937), Roosevelt’s newly established National Labor Relations Board (NLRB) filed suit against the Jones and Laughlin Steel Corporation for its firing of striking workers. The government’s position was inspired by pro-worker sentiment. With the advent of the New Deal, FDR’s administration had supported union workers and sought to return the economy to full employment. The Court decided that the government agency, the National Labor Relations Board, had a valid duty to punish businesses that violated the rights of unions to organize. In the majority opinion, Chief Justice Charles Evans Hughes wrote that the dispute between management and labor would have reverberating effects on the national economy, thus permitting it to be regulated under the power of the Commerce Clause.

Hughes further wrote and did acknowledge, however, that situations that have a limited effect on interstate commerce and are so remote and local in nature may have difficulty being subject to Congressional regulation in this area. This standard, however, without strict boundaries raised the possibility of being abused with the potential ability of the government actor to call the proverbial “balls and strikes” on companies’ policies that it deems has influence on interstate commerce. This decision helped construct the framework of excessive government regulation into the sector of private business.

Let us compare this expansive reading of the Commerce Clause to Gibbons v. Ogden. In Gibbons, a state sought to usurp an enumerated power and this was negated by the Supreme Court within the principles of Constitutionalism. NLRB was a dramatic step away from the Gibbons interpretation, whereas the Court was now ruling on a hypothetical effect on the national economy to expand the powers of the federal government. The outcome of NLRB, appeared to pacify political aims and validate rights of unionization through court order rather than legislative channels.

In 1942, the Supreme Court further assessed the flexibility of the Commerce Clause in the case, Wickard v. Fillburn. In this case, the Court followed its earlier interpretation in NLRB to stop Mr. Fillburn, a local farmer, from producing more wheat than was allowed under government production limits to feed his own family. The government had attempted to raise crop prices by instituting production limits per acre of land through the Agricultural Adjustment Act of 1938 hoping that reduced supply would raise prices and solve the plight of farmers. Fillburn had gathered about 12 extra acres worth of wheat above the limit set by the AAA. His argument was that since the wheat was meant entirely for his own use and never hit market there was no problem relating to interstate commerce.

Per the standard articulated by Hughes in NLRB, this would fall firmly into the category of local matters which have no need to be regulated. The Court, however, expanded from Hughes’s interpretation to a more invasive interpretation arguing that the effect on commerce is substantial because without this extra wheat Fillburn would have purchased on the market and thus effected price. The Court cited a “substantial economic effect” (the proposed movement of wheat prices upon Fillburn’s purchase) as sufficient grounds to rule against this farmer and allow for regulation under the Commerce Clause of all activities “substantive and economic”.

In sum, besides the flawed economic theory that is attributed as a justification for this opinion it is invasive for the government to infringe on the personal rights of its citizens in such a way. It was a soft form of the failed central planning model that has been prevalent in Communist nations. Wickard is often considered a controversial decision and diverged from the Court’s interpretation of the Commerce Clause in Gibbons and NLRB.

The powers of the federal government have been expanded through Supreme Court interpretation of the Constitution since the beginning of the Republic, but the New Deal cases concerning the Commerce Clause were among the most aggressive actions undertaken by the Supreme Court to exceed its regulatory boundaries. Instead of standing as a barrier between excessive state regulation as seen in Gibbons, the New Deal cases relied on government to excessively interfere with the economic affairs of its people. These interpretations were inherently overzealous and did not lend themselves to the ideals of a market economy within the boundaries of the Constitution. These cases should stand as a bellwether to warn the populace of the dangers of an overzealous government in our everyday lives especially in the present lingering COVID-19 economic cloud. An interpretation of the Constitution that respects the principles of federalism and the limits of the branches of government is essential to retaining the civil liberties we enjoy in this nation, and as a safeguard against tyrannical government action.

Works Cited