STRANGE CONFLUENCE OF EVENTS. The First Amendment is in the news -- and on my mind -- this morning.
Topic One: Toni Smith, the Oklahoma University women's basketball coach, and the flag. Toni Smith is, of course, the senior basketball player from Manhattanville College who has protested past and current societal inequalities by turning her back on the American flag during the national anthem before her team's games.
Predictably this has caused a lot of gnashing of teeth and platitudes about "team unity" and "disrupting the season" despite the fact team is a pretty respectable 17-10 this season.
A few things that come to mind:
First, whatever the rhetoric coming from her teammates and coaches (and various irate fans), there's no way that this is anything but a view-point centered assault on Smith's beliefs. Imagine a black basketball player refusing to pay homage to the old Georgia state flag -- is anyone going to question that decision, even if his or her teammates disapprove and think that it is destructive of team morale?
Second, why doesn't this set off "heckler's veto" warning bells across all First Amendment idealists?
Third, Oklahoma University's women's basketball coach, Sherri Coale announced this morning on Outside the Lines that she would view any attempt by one of her players to disrespect the flag (including not standing at attention to it during the national anthem, presumably) with great disdain and all but said she wouldn't allow them on the team.
Can she do that? It's pretty clear that if she were a classroom teacher she couldn't. And whlie I think it's pretty obvious that the First Amendment would allow more leeway in an athletic team setting, why would that discretion extend to enforcing rules only tangentially related, at best, to the team's mission of winning games? Coach Coale said it was all about the team fostering "respect," but what if she decided they all needed to foster respect by attending the same church together? Joining the same bible club? Contributing their volunteer time to the same political candidate? Could she get away with that?
One easy response, of course, is to say that the flag is somehow different than the sectarian or ideological examples I gave above. But then what about Barnette?
Topic Two: Speaking of the flag and the pledge, how about the Ninth Circuit, eh?
Jack Balkin has a great post on the pledge and ceremonial deism, but it leads to just more questions. As he points out, there's something not quite consistent with saying that we can leave invocations of God in certain public spheres because it has no meaning.
I think ceremonial deism is best understood not as a coherent analytical category (in part for the reason Professor Balkin identified) but instead as a convenient placeholder for the Supreme Court to use when doctrine and prudence are at odds. To put it another way, on a blank slate the pledge, the motto ("In God We Trust"), the invocations of God at the beginning of court and Congressional sessions, &tc. all ought to be unconstitutional per the Court's Establishment Clause jurisprudence. But the Court isn't willing to pick those kind of fights (precisely because, I think, of the reaction the Ninth Circuit's opinion provoked) so it hides them in the category of ceremonial deism.
But that, in turn, leads me to wonder if that category is now closed. Professor Balkin suggests that it isn't --sort of-- by acknowledging that the Court might deal with the Newdow case by invoking ceremonial deism and conclude that since 1954 "the use of the words has become comfortable like an old shoe, and has lost its religious edge. It's purely ceremonial, and we can retain it."
He's probably (almost undoubtedly) right as a predictive matter, but it does make me wonder if the Congress tried something like that today (inserting "under God" in a formerly secular public situation) whether or not the Court would strike it down. I would think they would have to if they wanted to remain the least bit consistent with their prior rulings -- in other words, the force of the ceremonial deism defense rests in large part on its age; stripped of age and historical context, it provides cold comfort.
Topic One: Toni Smith, the Oklahoma University women's basketball coach, and the flag. Toni Smith is, of course, the senior basketball player from Manhattanville College who has protested past and current societal inequalities by turning her back on the American flag during the national anthem before her team's games.
Predictably this has caused a lot of gnashing of teeth and platitudes about "team unity" and "disrupting the season" despite the fact team is a pretty respectable 17-10 this season.
A few things that come to mind:
First, whatever the rhetoric coming from her teammates and coaches (and various irate fans), there's no way that this is anything but a view-point centered assault on Smith's beliefs. Imagine a black basketball player refusing to pay homage to the old Georgia state flag -- is anyone going to question that decision, even if his or her teammates disapprove and think that it is destructive of team morale?
Second, why doesn't this set off "heckler's veto" warning bells across all First Amendment idealists?
Third, Oklahoma University's women's basketball coach, Sherri Coale announced this morning on Outside the Lines that she would view any attempt by one of her players to disrespect the flag (including not standing at attention to it during the national anthem, presumably) with great disdain and all but said she wouldn't allow them on the team.
Can she do that? It's pretty clear that if she were a classroom teacher she couldn't. And whlie I think it's pretty obvious that the First Amendment would allow more leeway in an athletic team setting, why would that discretion extend to enforcing rules only tangentially related, at best, to the team's mission of winning games? Coach Coale said it was all about the team fostering "respect," but what if she decided they all needed to foster respect by attending the same church together? Joining the same bible club? Contributing their volunteer time to the same political candidate? Could she get away with that?
One easy response, of course, is to say that the flag is somehow different than the sectarian or ideological examples I gave above. But then what about Barnette?
Topic Two: Speaking of the flag and the pledge, how about the Ninth Circuit, eh?
Jack Balkin has a great post on the pledge and ceremonial deism, but it leads to just more questions. As he points out, there's something not quite consistent with saying that we can leave invocations of God in certain public spheres because it has no meaning.
I think ceremonial deism is best understood not as a coherent analytical category (in part for the reason Professor Balkin identified) but instead as a convenient placeholder for the Supreme Court to use when doctrine and prudence are at odds. To put it another way, on a blank slate the pledge, the motto ("In God We Trust"), the invocations of God at the beginning of court and Congressional sessions, &tc. all ought to be unconstitutional per the Court's Establishment Clause jurisprudence. But the Court isn't willing to pick those kind of fights (precisely because, I think, of the reaction the Ninth Circuit's opinion provoked) so it hides them in the category of ceremonial deism.
But that, in turn, leads me to wonder if that category is now closed. Professor Balkin suggests that it isn't --sort of-- by acknowledging that the Court might deal with the Newdow case by invoking ceremonial deism and conclude that since 1954 "the use of the words has become comfortable like an old shoe, and has lost its religious edge. It's purely ceremonial, and we can retain it."
He's probably (almost undoubtedly) right as a predictive matter, but it does make me wonder if the Congress tried something like that today (inserting "under God" in a formerly secular public situation) whether or not the Court would strike it down. I would think they would have to if they wanted to remain the least bit consistent with their prior rulings -- in other words, the force of the ceremonial deism defense rests in large part on its age; stripped of age and historical context, it provides cold comfort.
