Wednesday, March 25, 2009

It's a First Amendment Issue, Just the Wrong Clause

In 2006, Brittany McComb delivered her valedictorian speech at her high school in Nevada. According to this article on Americans United for the Separation of Church and State, her speech was interrupted by school officials, who pulled the plug on her microphone after she stated "[God's love] is something that we all desire, it's unprejudiced, it's merciful, it's free, it's real, it's huge, it's everlasting... God's love is so great that He gave up His only son."

You see, the school officials warned her that while she was able to reference her faith during her speech, she would not be allowed to proselytize. She apparently decided she didn't need to obey the officials. She even went on Fox News' Hannity and Colmes, arguing that the school district violated her First Amendment rights, (again from the article linked above), "[the school district] denied me free speech, and it denied me the right to be who I am and who, you know, God made me to be."

While to an 18 year old who feels like she's been wronged, perhaps this could seem like the case. While she got the correct Amendment, she's unfortunately viewing the wrong clause. You see, the school district was right. Let's see why.

All right, the short answer is that the school district was right because the 9th Circuit Court of Appeals said so. Of course, those Christian Conservatives out there looking for a reason to discount this will point to this being the 9th Circuit Court of Appeals, which is full of those "Activist Judges," you know, the ones whose opinions don't match your own. So let's delve just a little deeper, shall we?

First off, we have the Supremacy Clause - i.e. The Constitution and all laws and treaties entered pursuant to it shall be the "Supreme Law of the Land," (see U.S. Const. Art. VI). Then, you look at Marbury v. Madison 5 U.S. 137 (1803), which says that the interpretation of the law is the province of the judicial department. This is all background to the part that matters with respect to this case.

The two cases that bear most heavily on McCombs's situation are Lee v. Weisman and Santa Fe ISD v. Doe. The former case, Lee v. Weisman 505 U.S. 577 (1992), involved a school in New Jersey that invited local clergy to deliver invocations at graduation ceremonies. The Court held that unconstitutional coercion occurs when 1. the government directs 2. a formal religious exercise 3. in such a way as to oblige the participation of objectors," (See Jones v. Clear Creek ISD, 977 F.2d 963, 971 [5th Cir. 1992]). You see, you can't create a situation where a student is obliged (even if the ceremony isn't *mandatory,* it's still a rite of passage and the alternative to avoid this to avoid being preached to fails any rational balancing. Of course, Lee involved a rabbi who had been invited to speak. McCombs is a student. Surely that's different, right?

Wrong. This situation was addressed just a few years ago in Santa Fe ISD v. Doe, 530 U.S. 290, (2000). This involved a school district in Texas that would invite a student from the high school to deliver an invocation at a football game. Here, the Court differentiates between private (protected speech) and public speech,

The delivery of a message such as the invocation here–on school property, at school-sponsored events, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer–is not properly characterized as “private” speech.

This is, as you may have guessed, unacceptable, and not unlike the facts presented in McCombs's situation.

What the school and the 9th Circuit Court of Appeals are saying, in a nutshell, is that there is nobody preventing McCombs from being a Christian, or believing in God, or worshipping God. In fact, there's nothing wrong with anybody believing anything they want. However, nobody, not McCombs, not any of the other students at the school, can use the public forum to proselytize to a captive audience. This was absolutely the right decision.