A Tale of Two Cases

by: Ronald D. Rotunda

Visiting Senior Fellow in Constitutional Studies
The Cato Institute and The Albert E. Jenner, Jr., Professor of Law
The University of Illinois The College of Law

The First Amendment grants us Freedom of Speech. When one compares two recent cases, the courts act as if there are really two free speech clauses: one compels the government to subsidize speech that mocks religion, while the other requires the government to ban free speech that tangentially refers to religion in a non-mocking way. One might think that those who speak favorably about religion should not be given fewer rights than those who smear or besmirch religion. But if you think that, you have not been keeping up with the case law.

In the first case, C.H., as Guardian Ad Litem of Z.H., a Minor, v. Oliva, — F.3d —, 1999 WL 965665 (3d Cir. 1999), a teacher told her first grade students that, as a reward for special achievement, they could pick a story to read to the class. The only announced condition was that the story not be too long or complex. Z.H picked a story that, in its entirety, read as follows:

    Jacob traveled far away to his uncle’s house. He worked for his uncle taking care of sheep. While he was there, Jacob got married. He had twelve sons. Jacob’s big family lived on his uncle’s land for many years. But Jacob wanted to go back home. One day, Jacob packed up all his animals and his family and everything he had. They traveled all the way back home to where Esau lived. Now Jacob was afraid that Esau might still be angry at him. So he sent presents to Esau. He sent servants who said, "Please don’t be angry anymore." But Esau wasn’t angry. He ran to Jacob. He hugged and kissed him. He was happy to see his brother again.

That’s it. There was no reference to God. There was no reference to the Bible.

Even though Ms. Oliva, the grade school teacher, decided that the story was of appropriate length and reading complexity, she told Z.H. that he could not read this story to the class "because of its religious content." When the family complained, the principal said that reading that story "was the equivalent of praying and might upset Muslim, Hindu and Jewish students." I’m not making this up: the principal thought that Jewish students might be upset if someone read a story from the Hebrew Bible. (By the way, Muslims like Christians, also accept the Hebrew Scriptures. As for praying, the story wasn’t a prayer. And, we must realize that schools will never be able to stamp out praying as long as they give exams.)

The school principal added that "perhaps C.H. should consider removing Z.H. from public school." Of course, that take-it-or-leave it approach offered no realistic alternative, given that the state provided no tuition vouchers. So, the family sued.

The Third Circuit panel, with no dissent, agreed that, under the First Amendment, the school should not allow the student to read this story. Z.H. wanted to read from a cartoon-illustrated children’s book, called The Beginner’s Bible: Timeless Children’s Stories, but he did not inform the other students of that. However, as the Third Circuit pontificated, "other students might recognize that presentation as a story from the Bible." And that would be wrong. A school must retain "the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with ‘the shared values of a civilized social order,’ or to associate the school with any position other than neutrality on matters of political controversy." The story of two brothers reconciling did not involve alcohol, sex, or politics. It must have been "inconsistent with ‘the shared values of a civilized social order.’" This first year student was a real trouble-maker.

The Third Circuit gave no hint that either it or the grade school would object to the student reading a story from a Disney cartoon book, such as a story based on the recent movie, Hercules. Wait a second; maybe that would be wrong too: Hercules is a story from the ancient Greek pagan religion. Must the school also ban that, or is it only politically incorrect to read stories that are within the Judaic-Christian tradition? Is it permissible to read a story about the patience of Penelope, from the Odyssey, but not a story about the patience of Job, from the Old Testament?

For many judges, the answer to that question is yes. In Bowen v. Ray, 476 U.S. 693 (1986), Justice O’Connor, joined by Justices Brennan and Marshall, argued that a Native American should be excused from obtaining a social security number because it conflicted with certain Native American religious beliefs. "[G]ranting an exemption to Little Bird of the Snow, and to a handful of others who can be expected to make a similar religious objection to providing the social security number in conjunction with the receipt of welfare benefits will not demonstrably diminish the Government’s ability to combat welfare fraud." In the view of these justices, a religion with few adherents has greater First Amendment rights than a religion part of the Judaic-Christian tradition.

That was a dissent, but its message bore fruit in Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995), where the Ninth Circuit held that a state elementary school had to make exceptions to its "no weapons" policy, so that all Sikh children (seven years old and older) could carry knives to school. Sikhs are a small group, the court said; the school should make this limited exception. This knife (or "kirpan") has a three and a half-inch blade, and it could not be made immovable, for that would conflict with Sikh beliefs requiring the children to carry and to use the knife to "propagate God’s justice." So, the public school can allow little children to carry knives if they are Sikhs, but the school cannot allow a first grader to read a story that never mentions God, but is taken from the Hebrew Bible, because that might offend Jewish students.

Z.H. was decided on October 22, 1999. Almost simultaneously, on November 1, 1999, another federal court decided the second case in our tale, Brooklyn Institute of Arts and Sciences, v. The City of New York, 64 F.Supp.2d 184 (E.D.N.Y. 1999). The Brooklyn Institute, established and funded by state law, opened what it called the "Sensation Exhibit," which displayed artwork like a portrait of the Virgin Mary adorned with elephant dung and accompanied by small photographs of female genitalia scattered on the background. Other displays included two pigs in formaldehyde. The museum itself announced that the exhibit would be inappropriate for children under age 17 "without adult supervision."

While supporters of the museum compared Mayor Giuliani’s actions to a book-burning, no one ever proposed burning anything, although one might imagine a different reaction if the Museum decided to exhibit a series of works that burlesqued a Native American religion or supported the bludgeoning of baby seals, with the results preserved in formaldehyde. Mayor Rudolph Giuliani merely decided that the taxpayers of New York City should not be forced to subsidize the museum (the city contributes about a third of its annual budget, about $7.2 million per year), whether or not what it displayed is "art." The city, after all, is not required to subsidize an R-rated movie. The patrons of the movie have to pay their own way. In response, the federal court held that under the First Amendment, it should issue a preliminary injunction that required the taxpayers of New York to subsidize the Brooklyn Museum.

The judge said that city officials (state actors for purposes of the "state action" requirement of the Fourteenth Amendment) should not make the decision as to what art the Brooklyn Museum should display. But state actors — whether museum employees or the Mayor — are always making such decisions. The museum employees, just like the Mayor, are representatives of the state. These state actors decide what to display or not to display on the museum walls. Because a museum wall is not a public forum, some government actor will have to decide what to exhibit. In this case, the museum made a decision to prominently show works collected by Charles Saatchi, from whom the museum had solicited a $160,000 contribution. (The museum initially kept this financial arrangement secret, later denied it, and finally admitted it. The "Sensation Exhibit" likely increased the value of Mr. Saatchi’s collection.)

The issue is not whether the "Sensation Exhibit" is "art." I assume that it is, although I’ve never seen dung or pig parts displayed next to the oils and acrylics in an art supply store. The issue is whether the First Amendment requires the government to subsidize this art. Does free speech mean that the common masses are forced to subsidize the tastes of the intelligentsia?

Humans need art, and the artist has a unique role in our society. Thousands of years ago, cave dwellers, who spent most of their days piecing together a subsistence by hunting and gathering, still found time for art. The beautiful cave drawings in France are proof of that. But those Stone Age Rembrandts did it without government subsidies. If the First Amendment allows some state actors (museum employees) to decide whether to display, or not to display, "Sensation," why does the First Amendment not allow other state actors (the ones paying the bills) to make similar decisions? If some government actors make a decision to exhibit "Sensation," other government actors (the Mayor) should be able to allow that exhibit while withdrawing funding for the museum. If the intelligentsia does not want government making these decisions, they should oppose governmental subsidy of the arts.

The court argued that the Mayor had a bad motive, because he had said that "taxpayer-funded property should not be used to ‘desecrate religion’ or ‘to do things that are disgusting with regard to animals.’" Why is this motive bad? The museum employees had a different motive; they thought that the government should subsidize the dung-adorned paintings and the formaldehyde pigs. Why is that motive good? If the museum employees had initially decided that the museum should not display the Saatchi collection — if the museum employees had shared the Mayor’s motive — does that mean that Mr. Saatchi could force the museum to display his "Sensation Exhibit"?

Conclusion. What is the state of the law? When we add these two cases together — Z.H. and Brooklyn Institute —, we know that the First Amendment forbids Z.H., the first grader, from reading a portion of cartoon-illustrated children’s book, called The Beginner’s Bible. However, if Z.H. had only dipped the book in elephant dung, not only could he read the story, but the state would be required to subsidize his recitation. Such is the state of modern First Amendment law.

Centuries ago, the King asked Lord Chief Justice Edward Coke why only judges and lawyers could engage in common law reasoning. Coke replied that "common" law reasoning was exclusively for those trained in the "unnatural" reasoning of the common law. Perhaps that is the best way to explain these cases: they are the product of unnatural reasoning. These two cases are about free speech, and they appear to teach us that people who speak about matters that relate religion have fewer rights than those who speak in order to belittle religion.


2003 The Federalist Society