by: Ronald D. Rotunda
Visiting Senior Fellow in Constitutional Studies
The Cato Institute and The Albert E. Jenner, Jr., Professor of
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 uncles house. He worked
for his uncle taking care of sheep. While he was there, Jacob
got married. He had twelve sons. Jacobs big family lived
on his uncles 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 dont be angry anymore."
But Esau wasnt angry. He ran to Jacob. He hugged and kissed
him. He was happy to see his brother again.
Thats 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."
Im 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 wasnt 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 childrens
book, called The Beginners Bible: Timeless Childrens
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 OConnor, 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 Governments
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 Gods 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 Giulianis 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. Saatchis collection.)
The issue is not whether the "Sensation Exhibit" is "art."
I assume that it is, although Ive 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 Mayors 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 childrens
book, called The Beginners 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.