But the fact that anyone can do this doesnt detract from its significance, or the risks that it might entail.

Next week, it will have been eight years since Austin Tice went missing. Austin was a Georgetown law student and former U.S. Marine Corps officer who went to Syria as a freelance journalist in 2012. He was also one of the only Western journalists on the ground while the Syrian conflict was unfolding and he made it his mission to report on the impact the conflict was having on civilians. On July 25, 2012, he posted this on his Facebook page, responding to those who told him he was crazy to try to report what was happening in Syria: We kill ourselves every day with McDonalds and alcohol and a thousand other drugs, but weve lost the sense that there actually are things out there worth dying for. Weve given away our freedoms piecemeal to robber barons, but were too complacent to do much but criticize those few who try to point out the obvious.

On Aug. 14, 2012, three days after his 31st birthday, Austin Tice was taken captive as he was preparing to travel from Daraya, near Damascus, Syria, to Beirut, Lebanon. Diverse credible sources report that he is still alive. Austins parents, who have unrelentingly advocated for his return, recently published an open letter in The Washington Posts Press Freedom Partnership newsletter that included this heartbreaking message:

Each year around Austins birthday and the date of his capture, theres a brief moment of renewed attention and media coverage. Our son is imprisoned every single day. Every single day Austin needs his colleagues in journalism to ask questions about what is being done to bring him home, to dig for answers when they meet with obfuscation and to hold U.S. government officials accountable for their actions or lack thereof.

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First Five: Standing up for the First Amendment and Austin Tice - McDowell News

This article is part of aSCOTUSblog symposiumon the Roberts court and the religion clauses.

Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation professor of law at the University of Notre Dame and is the founding director of the schools Program on Church, State and Society. He wrote or joined amicus briefs in several of the cases described below, including most recently joining an amicus brief on behalf of the petitioners in Our Lady of Guadalupe School v. Morrissey-Berru.

Those who think and write about the Supreme Court, including many of the justices themselves, tend to collect and deploy colorful adjectives and epithets to describe the state of its religion clauses doctrine and case law. It is not necessary to go full-thesaurus or to march out the entire parade of pejoratives here. A hot mess was the recent pronouncement of one federal court of appeals. And my own favorite is still Justice Antonin Scalias 1993 portrayal of the so-called Lemon test as a ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.

An important part of the Roberts court story, though, is that it has both continued and facilitated developments-for-the-better in law-and-religion. Chief Justice John Roberts, following in several ways the example and path of his predecessor, William Rehnquist (for whom he and full disclosure I clerked), has directed, not merely endorsed or observed, these changes. The standard, habitual denunciations no longer seem to apply. As Larry David might put it, the law of the religion clauses is actually pretty, pretty good.

Many scholars and commentators would disagree, of course. To them, these developments represent the crumbling, demolition or some other masonry-related downgrading of the wall of separation between church and state, or they supply evidence of a judicially ascendant Christian nationalism or even theocracy. In fact, though, the Roberts court has moved the law of religious freedom and church-state relations toward coherence and clarity, and better aligned it with American history, tradition and practice and with an appropriate understanding of judges capacities and the judicial role in a democracy.

A number of recent decisions, including several cases from the 2019-20 term, illustrate this movement. And one that is already scheduled for the fall and another that the justices have been asked to review provide an opportunity to continue it. But before discussing recent rulings and upcoming arguments, it is worth asking how and why things went wrong.

The Supreme Court, during its first century and a half, had almost nothing to say about the judicially enforceable content of the right to religious freedom, about the role of religious believers and arguments in politics and public life, or about the terms of permissible cooperation between church and state. Questions about these matters were, for the most part, worked out politically and practically, and in ways that (for better or worse) did not often depart from public consensus, habit and expectations. With the gradual incorporation of the Bill of Rights, though, and the Supreme Courts emerging understanding of its counter-majoritarian role, this changed.

As the court took up the task of interpreting and enforcing the religion clauses, at least three things contributed, eventually, to the much-derided state of doctrinal affairs. The first was the constitutionalization indeed, the fetishization of a James Madison pamphlet and a phrase in one of Thomas Jeffersons constituent-service letters. In his 1947 opinion for the court in Everson v. Board of Education, Justice Hugo Black of Alabama presented as canonical a potted and partial history of Americas religious-freedom experience in which a Virginia controversy and Jeffersons passing reference to a wall of separation between Church and State and not the broad range of views about the meaning of disestablishment were foundational and controlling. Particularly in school-funding cases, this focus (or myopia) would cause the justices to convert the First Amendments no-establishment rule into a command that, somehow, governments avoid advancing religion.

A second misstep was the embrace of an understanding of constitutionally required neutrality that consisted not in even-handedness or nondiscrimination among Americas increasingly diverse array of religious traditions and communities, but instead in the absence of (something called) religion from (something called) the secular sphere. That is, neutrality was often said to require the forced confinement of religion to the purely private realm, preventing it from playing any role in the routines of public schools and other spaces.

Finally, there was the relatively late-emerging problem of public religious displays, symbols and expression. Although these did not, strictly speaking, impose any obligations, penalties or disadvantages, or confer any privileges, they came to be seen by the court as threatening or contributing to political divisions along religious lines or as endorsing religion and thereby telling some that they are less than full citizens or outsiders in the political community. At the same time, judges and justices were often unwilling to follow through to the extent of outlawing all public displays, symbols and art connected with religious holidays and themes, or undoing the national motto, or cancelling longstanding practices like legislative chaplains. The line between an unlawful endorsement and a permissible acknowledgment of religion seemed to depend on little more than the intuitions, or the aesthetic preferences, of the one drawing it.

For these and other reasons, the evocative denunciations by various justices of, say, the interior-decorating and semiotics aspects of courts attempts to apply the endorsement test and of the strange contrasts involved in school-funding cases between the religion-advancing effects of books and maps, had force. However, to make a long story short, under the Rehnquist and now the Roberts courts, things have improved.

For starters, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a unanimous 2012 opinion authored by Roberts, the court reminded us that the point of separating, or differentiating between, church and state is not to erect a cooperation-killing wall but instead to protect religious freedom by preventing governments from interfering in religious matters and from purporting to answer religious questions. In June, the justices re-affirmed this understanding, and the corresponding right of religious communities to select their own teachers and teachings, in Our Lady of Guadalupe School v. Morrissey-Berru.

By 2002, a gradual but unmistakable evolution in the cooperation-with-religion context culminated in the Zelman v. Simmons-Harris decision, in which the court downplayed the Lemon tests quixotic aim of avoiding any advancing of religion and instead applied a more straightforward and enforceable requirement of formal neutrality. And, this past term, in Espinoza v. Montana Department of Revenue, the court ruled that not only may governments provide funding to persons who choose religious schools, hospitals and social-welfare agencies for the important public goods they provide, they may not discriminate against religion when doing so.

And another example of doctrinal clean-up came in 2019s decision in American Legion v. American Humanist Association, in which the justices rejected an establishment clause challenge to a large and longstanding war-memorial cross on public property. Instead of hypothesizing about the messages on civic status communicated by the cross to judicially constructed reasonable observers, a majority of justices called for respecting, and deferring to, history and tradition when deciding whether a particular symbol amounts to an establishment of religion. Noncoercive and time-honored displays and practices should not be uprooted on the complaint of offended observers in the name of an abstract understanding of the secular.

The remaining category of American religious-liberty controversies involves exemptions for religious exercise and accommodations for religious people. The Roberts court has several times affirmed, sometimes unanimously, that religious exercise may, and should, be legislatively accommodated and may be treated as special by governments in keeping with the particular solicitude shown for it in the First Amendments text and throughout American history. The long-running dispute over the Affordable Care Acts contraception-coverage mandate, which returned to the court last term with Little Sisters of the Poor v. Pennsylvania, provides a contested illustration of the courts willingness to interpret legislative accommodations of religion broadly, but the controversy surrounding this particular controversy should not obscure the broad, clear consensus that reasonable accommodations of religious dissenters promote both religious freedom and civic peace.

So far, the Roberts court, with its conservative majority, has left in place the rule, laid down 30 years ago in Employment Division v. Smith, that, although generous accommodations of religion are permitted, exemptions from generally applicable and nondiscriminatory laws that burden some religious practices are not required by the free exercise clause. The Smith rule has come in for criticism that is every bit as harsh, and at least as widespread, as the critiques of the Lemon and endorsement tests. And the justices have agreed to hear a case this fall that offers an opportunity to reject or revise it.

Fulton v. City of Philadelphia involves the citys decision to exclude Catholic Social Services from participating in the enterprise of foster-care placements because that agency refuses, for religious reasons, to certify same-sex couples as foster parents. Although the justices could rule for Catholic Social Services on the narrow ground that the citys policies are not really neutral or generally applicable an approach similar to the route chosen in the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission the question whether Employment Division v. Smith should be revisited is squarely presented.

The Roberts courts interpretation and application of the religion clauses have continued an evolution that made First Amendment doctrine more coherent and also more consonant both with historical practice and the judicial role. Exactly how a revisiting of Smith would fit in with this evolution remains to be seen. Stay tuned.

Posted in Symposium on the Roberts court and the religion clauses, Featured

Recommended Citation: Richard Garnett, Symposium: Religious freedom and the Roberts courts doctrinal clean-up, SCOTUSblog (Aug. 7, 2020, 9:57 AM), https://www.scotusblog.com/2020/08/symposium-religious-freedom-and-the-roberts-courts-doctrinal-clean-up/

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Symposium: Religious freedom and the Roberts courts doctrinal clean-up - SCOTUSblog

By The Associated Press

INDIANAPOLIS An Indiana man, allegedly angered by the removal of a tree, is charged with a hate crime for attempting to intimidate an African American neighbor because of his race, the U.S. Justice Department announced Thursday.

Shephard Hoehn, 50, became angry when a construction crew began removing a tree from the neighbors property on June 18, according to the Justice Department. Hoehn allegedly burned a cross next to a fence near the neighbors property; displayed a swastika and displayed a large sign containing a variety of anti-Black racial slurs. Hoehn also allegedly threw eggs at the neighbor's home and played the song ``Dixie repeatedly.

Although the First Amendment protects hateful, ignorant and morally repugnant beliefs and speech, it does not protect those who choose to take criminal actions based on those beliefs, said U.S. Attorney Josh Minkler. This office will continue to prosecute federal hate crimes to the fullest extent of the law.

Efforts to reach Hoehn were unsuccessful because a telephone number couldn't be found. It wasnt immediately known if Hoehn had a lawyer to speak on his behalf.

According to the criminal complaint filed in the U.S. District Court for the Southern District of Indiana, Hoehn admitted to actions listed in the court document during interviews with FBI agents. He allegedly said he knew the racial connotations of his actions, that he knew his actions would be disturbing to his neighbor because he is Black, and that he took such actions because he knew they would evoke an emotional response in his neighbor. However, Hoehn asserted he wasn't a racist and he was exercising his First Amendment rights.

Prosecutors say a search of Hoehns Indianapolis home by the FBI turned of firearms and drug paraphernalia and determined he is a fugitive from a case pending in Missouri, prompting unlawful possession of firearms charges against him.

According to court documents, Hoehn pleaded guilty in 1991 to a stealing charge in Dunklin County, Missouri. However, he failed to complete a sentence of three years probation. An arrest warrant for Hoehn was issued in 1993.

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Man accused of targeting Black neighbor - The Herald

Our Constitution in the First Amendment gives the people the right peaceably to assemble, and to petition the Government for a redress of grievances. As properly interpreted, there is no requirement for an assembly in order to submit a petition. Our founders were wary of mobs, especially if led by a dangerous demagogue. What they wanted was a written petition signed by one or many, but delivered to the Government only by one or a very few. Certainly, any kind of disruption or violence should not be tolerated.

The 1794 Whiskey Rebellion (active with some violence here in western Pennsylvania) was simply a refusal to pay the new excise tax. Only after a couple of years President Washington sent troops. The rebellion ended without a fight and several were arrested, but later the charges were dropped. This early initial tolerance for disruption, we note, has today become very widespread.

Our question is about the extent of the right to protest. Many protesters assume that, without obtaining any permits, they have the right to block an interstate highway, close off city streets, ignore curfews, occupy the offices or parks, harass police, and generally to disrupt ordinary life. The procedures to obtain permits for parades, marches, or rallies (which to some extent disrupt our routine life) should be granted under the First Amendment with proper limits and restrictions. But is there a justification in some cases for unpermitted disruptions or law-breaking?

In the Jim Crow South in 1960 black patrons with no disruption sat on empty lunch counter stools. But they refused to leave when told that by law it is white only. These patrons refused to leave and were arrested. This is what Rep. John Lewis called good trouble. It may be, then, that some cases of nonviolent lawbreaking are morally justifiable.

But to get arrested for a curfew violation or trespassing may not be a good tactic. The relevant permitting laws and their implementation may be reasonable. There is little practical value and no moral right in protesting in the middle of the night.

Some have argued that only unpermitted and major disruption or even destruction can get attention. Sadly, there may be some truth to this claim. The establishment can allow marches and rallies and ignore the needed change. After the 2018 Parkland, Florida, high school mass shooting, students and others organized rallies and testified before Congress. Very little gun reform ensued, at least at the federal level. The NRA lobby retains its power and politicians do not fear being voted out. After the murder of George Floyd, the US Senate may not enact any significant police reform. But riots that destroy communities mainly bring local suffering.

Suffragettes in 1917-19 stood outside the WhiteHouse with signs calling for their vote, but eventually President Wilson had them arrested for loitering although there was no disruption. Even when many were jailed, Wilson did not budge. Only when Alice Paul and others were abused in jail and went on hunger strikes did he change his mind, embarrassed internationally as he fought for worldwide democracy. Nevertheless, as the case of Ireland shows, hurting oneself is often not the best way to win.

Before the Civil War, Congress, the courts, and the federal executive were all controlled by pro-slavery advocates. Peaceful demonstrations would not be effective. As for direct action, abolitionist John Brown misjudged the situation, and his attempt to start a slave rebellion failed, leading to his and others hangings.

President Trump, who says police should be tough, has sent into Portland federal troops to protect the federal courthouse. But they seem to be deliberately provoking violence in order to support his narrative that the nation is in grave danger from Democratically supported mobs from which only he can save us. Secretary of Defense Mark Esper on July 1 proclaimed and on July 3 regretted saying that federal agents should dominate the battle space. In response, protesters need to stay away from all federal buildings to avoid being complicit. But further, the mayor of Portland should stop tolerating unpermitted protests on public streets or parks and should forbid them late at night. On July 28 the DOJ agreed to have its troops stand aside if city police could defend the federal court house.

The lesson for protesters is that each situation needs to be carefully considered and the protest tactics wisely chosen. The lesson for governmental authorities is that they should respect the right to protest by granting ample times and spaces but not by tolerating violence or letting protesters occupy non-permitted areas. The lesson for legislators is to avoid passing or retaining laws that are widely and appropriately regarded as unjust.

Ed Abegg is philosophy professor emeritus at Edinboro University of Pennsylvania and author of Political Morality in a Disenchanted World and Engaging the World.

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COLUMN: How far does the right to protest go? - Meadville Tribune

Trump, who claims to be the Law and Order President, is gaslighting his gullible base of Fox News and OAN viewers as his right wing propaganda machine promotes fear-mongering advertisements featuring brutal images from the 2014 Ukraine Pro-Democracy protests again the Authoritarian Regime of Petro Poroshenko.

Meanwhile, his vicious Stormtrooper private army of unmarked SS paramilitary thugs, many belonging to Erik Princes taxpayer-funded Blackwater, are beating, tear-gassing, pepper-spraying, shooting with rubber bullets and illegally detaining peaceful protesters exercising their First Amendment rights to expose Americas racial injustices, police brutality, the criminal negligence of this administrations Covid-19 debacle and Trumps growing Neo-Fascist authoritarianism.

All this chaos to create Trump's own Reichstag fire in American cities. Himmler and Hitler would

be proud.

Lets review: The guy who is an unindicted felon accomplice for campaign finance fraud in the case his attorney was convicted for paying illegal hush money to a porn star, was fined for operating a fraudulent charity, sued for operating a fake university, swindled investors, associates and employees.

He's been accused of sexual assault, rape and pedophilia by over two dozen women, violates the emoluments clause for personal enrichment, pardons war criminals, traitors, con artists and swindlers, who evades taxes, committed bank and insurance fraud, who was impeached for bribery and extortion of Ukraine, who obstructs justice with the help of his corrupt AG and who arguably committed treason in aiding and abetting his puppet-master Putins attack on our 2016 election as he remains silent to Russian bounties paid for our dead hero soldiers.

That guy claims to be the Law and Order President. Thankfully, honest, moral and ethical Republicans like the Lincoln Project, Real Americans and RVAT.org are exposing Trump, his incompetent cabinet, sycophant congressional cowards and MAGA Cult followers to their own anti-American, anti-democracy depravity. On Nov. 3, vote blue to end this nightmare!

Bob Janz

McHenry

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Letter: The Law and Order President - Northwest Herald