"I should have the right to introduce my daughter to the concepts of adultery and coveting one's spouse."

"It shouldn’t be one of the first things she learns to read in her kindergarten classroom."

Said John Litzler, general counsel for the Texas Baptists Christian Life Commission, quoted in "Public schools would have to display Ten Commandments under bill passed by Texas Senate/The Senate also passed a bill that would set prayer and Bible reading times during the school day" (The Texas Tribune). 

On the pro side, Lt. Gov. Dan Patrick said: "I believe that you cannot change the culture of the country until you change the culture of mankind. Bringing the Ten Commandments and prayer back to our public schools will enable our students to become better Texans."

I like the way Litzler is invoking parental rights, which, on other issues, are so performatively treasured by social conservatives.

"I waited until morning to listen to Biden's nighttime speech... I went out for my sunrise run and thought about what I'd heard. I'll tell you some more about that later."

I wrote that yesterday in a post I published at 9:58 a.m. — a post that combed through the text of the speech. It's now a day later and I haven't followed through, and I could just forget about. Would anyone remember? Is anyone thinking, yeah, what did she think about, while running and viewing the sunrise, about a speech she'd listened to but not yet read? It's highly unlikely, and "I'll tell you some more about that later" isn't even a promise.

We're having a big thunderstorm here at that moment:

 

I'm thinking of keeping my non-promise. I made notes to myself — audio notes — as I was watching the sunrise yesterday, and I've listened to the notes and can see there is something I wanted to say that I haven't said yet. Let me get something to eat and settle in and see if I can find a way to put it in writing without it seeming too... internal.

ADDED: This is a rewriting and an expansion of my audio notes to myself. 

"In the end, the [School] District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties..."

"... and then develop some explanation why one of these Clauses in the First Amendment should '"trum[p]"' the other two. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the 'mere shadow' of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights. Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a [football] field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination."

From Kennedy v. Bremerton School District, announced just now, written by Justice Gorsuch and joined by the 5 Justices most likely to join Gorsuch.

Oh! I'd forgotten the Supreme Court is doing new case announcements this morning!

They haven't started yet, but the 5-minute-warning buzzer just sounded.

Watch the roll out of new cases at SCOTUSblog, here.

1. "The Court holds that both the free exercise and free speech clauses protect [a coach's] right to pray at midfield following high school football games." Here's the opinion, Kennedy v. Bremerton School District. From the syllabus of the opinion:

The Supreme Court issues an important freedom of religion case: "Maine’s 'nonsectarian' requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause."

Here's the opinion, Carson v. Makin.

Chief Justice Roberts writes the opinion, joined by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, and Breyer dissents, joined by Kagan and (in part) Sotomayor. Sotomayor has a separate dissenting opinion.

This is what I expected based on the Court's recent history with cases like this, but I'm eager to read it and will update this post.

ADDED: From the majority opinion:

Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment.

"For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing. As part of this program, Boston approved hundreds of requests..."

"... to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint. We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint 'abridg[ed]' their 'freedom of speech.' U. S. Const., Amdt. I." 

Writes Justice Breyer, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, and Barrett, in Shurtleff v. City of Boston, issued this morning. Justice Alito has a concurring opinion, joined by Justices Thomas and Gorsuch, and Justice Gorsuch has a concurring opinion that is joined by Justices Thomas and Alito. Justice Kavanaugh also has a concurring opinion.

You might wonder whether the Establishment Clause can justify viewpoint discrimination, but that's been dealt with in the past. That's why all the Justices agree: precedent. 

The text (at the link) includes this photo of the site of the flagpoles, Boston City Hall, which is ludicrously ugly:

 

"Supreme Court says Montana program aiding private schools must be open to religious schools."

WaPo reports.

Chief Justice John G. Roberts Jr., writing for a conservative majority in the 5 to 4 ruling, said the Montana Supreme Court was wrong to strike down the program because of a provision in the state constitution that forbids public funds from going to religious institutions. The U.S. Constitution’s protection of religious freedom prevails, he said.

“A state need not subsidize private education,” Roberts wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

AND: Here's the text of the opinion. I'm going to read it and give you more detail. I've taken out a statement I had up for a few minutes, criticizing the WaPo headline in a way that I no longer think was right.

ADDED: The state legislature enacted a tax credit of up to $150 for donations to scholarship programs, which could fund tuition for kids attending private schools. The state Department of Revenue interpreted the statute — which referred to "qualified education providers" — to exclude religious schools. That seems to be in line with the state constitution's prohibition of financial aid to "any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination," but the Free Exercise Clause of the U.S. Constitution requires strict scrutiny of discrimination against religion.

Under Supreme Court precedent, there's no Establishment Clause problem in including religious schools. The aid is defined in a religion-neutral manner, and it's only the parents' choice that determines that the money goes to a religious school. The hard question is whether the state court could use the state's constitutional "no aid" provision to strike down what the legislature did. The state's separation of church and state is especially staunch — stronger than the federal Establishment Clause — but can that be the "compelling state interest" that justifies discrimination against religion? The majority's answer is no, because the Free Exercise Clause is federal law.

But the state court took the benefit of the program away from everyone. So doesn't that achieve nondiscrimination? The dissenters say it does, but the majority says the legislature chose this program, and the state court's first step was a discrimination against religion. There was a second step, depriving everyone of the program, but that step was founded on the discrimination the court thought the state constitution required.

"ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B , II–C , III, and IV, in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ., joined. BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined."

That's the line up in American Legion v. American Humanist Association, the case about the 32-foot cross on public land that honors soldiers who died in WWI. The American Legion won — the case is reversed and remanded. It will take me a little time to find my way through those opinions. The precedents in this area of the Establishment Clause have been very confused, and (as someone who taught those cases for many years) I want to know how the Court puzzled through them this time.

I hope to have something more soon or eventually. It's interesting that only Sotomayor and Ginsburg dissent. Breyer was the key vote in the 10 Commandments cases 14 years ago, so what he has to say is important. Maybe I'll start there.

ADDED: Breyer's concurring opinion is short, and it is joined only by Justice Kagan. The vote was 7-2, so there's a majority without including Breyer and Kagan. I'm reading this opinion first simply because Breyer was the decisive vote in the 2 10 Commandments cases in 2005, where he voted against the display in one and for it in the other. I blogged that here, with the conclusion:

So multifactored, contextualized judgment continues to be the rule about government displays with some religious content, and there will be borderline cases where the outcome is uncertain and reasonable judges will disagree.

Maybe the best advice is for the strict separationists to choose their battles well. And certainly, one thing is clear: leave the old monuments and courthouse friezes alone.

Now, onto Justice Breyer's new effort (which relies heavily on his concurring opinion in the 10 Commandments case (Van Orden)):

I have long maintained that there is no single formula for resolving Establishment Clause challenges. See Van Orden v. Perry, 545 U. S. 677, 698 (2005) (opinion concurring in judgment). The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its“separate spher[e].”

The justice and only justice of removing "Justice, and only justice, you shall pursue" from the courthouse wall.

The words are from the Bible — Deuteronomy 16:20 — and they appear on a plaque under the name of the circuit attorney of St. Louis, Missouri. The demand to take down the plaque, on the theory that it violates the Establishment Clause, comes from The Freedom From Religion Foundation, Christian News reports.

“We write to request that this sign be removed, both because it represents a government endorsement of religion in violation of the First Amendment, and because it advocates a form of ‘justice’ that is incompatible with constitutional principles,” the letter, sent on Monday, reads.

How does that statement — "Justice, and only justice, you shall pursue"  — advocate a form of quote-unquote justice that's incompatible with constitutional principles? FFRF's idea seems to be that we can't judge the words out of context, and if we add the rest of Deuteronomy, we find a whole lot of "justice" that would be way out of line with the law to be applied in the courthouse. Would an ordinary observer load that meaning into the phrase? Well, the plaque does include the citation "Deut. 16:20." So we're told there is context, and you could check that out or draw up some general memories of what's in Deuteronomy, but I think an ordinary, reasonable observer would give a modern, general meaning to "justice." It's an abstract, noncontroversial value and not an endorsement of any particular religion or even the vaguest notion of God.

ADDED: I did a quick search for the worst idea of justice to be found in Deuteronomy. Maybe you can find something worse, but the one I came up with is Deuteronomy 23:1: "If a man's testicles are crushed or his penis is cut off, he may not be admitted to the assembly of the LORD." That's the New Living Translation. Here's the King James Bible: "He that is wounded in the stones, or hath his privy member cut off, shall not enter into the congregation of the LORD."

Not taking the time to look carefully.

From Intelligencer, a subdivision of New York Magazine. Here's my screen shot. Click to enlarge and clarify. The picture caption reads "Justice Kagan, top right, wrote the dissent."



In case it's not obvious to you, Justice Kagan is not even in that picture.

The executed man, Domineque Ray, asked to have his imam present. The Eleventh Circuit court granted a stay of execution. The Supreme Court majority took into account that Ray's application for a stay was "last minute." (I'm reading the opinion now.) Justice Kagan dissented:

This Court is ordinarily reluctant to interfere with the substantial discretion Courts of Appeals have to issue stays when needed.... Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.

The crime — murder of a 15-year-old girl — took place 20 years ago. But, as Kagan put it...

[T]here is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.

The God Pod.

The Herald reports:

A Muslim civil rights group filed a federal lawsuit Wednesday against a regional jail in Virginia, alleging that the jail has set up a Christians-only unit dubbed the “God Pod.”

The Council on American-Islamic Relations says officials at the Riverside Regional Jail have set aside a housing pod exclusively for Christian inmates who promise to live in accordance with the Bible. The group says the Christian pod violates the Constitution by favoring one religion over others.

The lawsuit accuses jail officials of discriminating against Muslim inmates and others by preventing them from participating in programs that teach their faith and excluding them from the housing unit, nicknamed the “God Pod” by inmates.

Trump wins the travel ban case.

Here's the PDF of the Supreme Court case, issued just now.

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, ALITO, and GORSUCH, JJ., joined. KENNEDY, J., and THOMAS, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.

From the Roberts opinion:

Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the Presi- dent with authority to restrict the entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks....

By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language....

Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere....

In section IV of the opinion the Court looks at"the claim that the Proclamation was issued for the unconstitutional purpose of excluding Muslims." First, the Court finds standing based on the "the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country." Looking at the substantive merits, the question is whether "singling out Muslims for disfavored treatment" violates the Establishment Clause."

"It is unconstitutional for public officials, including the president, to block Twitter followers who criticize them, a court ruled today in a legal dispute over President Trump’s account."

The Verge reports.

[The court wrote that] Twitter’s “interactive space,” where users can interact with Trump’s tweets, qualifies as a public forum, and that blocking users unconstitutionally restricts their speech. The decision rejected arguments from the president’s team that President Trump’s own First Amendment rights would be violated if he could not block users....

The court, while not going so far as to enter an order against the president and social media director Dan Scavino specifically, ruled more generally that public officials violated users’ rights when blocking them on the platform. The decision says such action is “viewpoint discrimination,” and that “no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.”...

Notably, the decision distinguished between Twitter’s block and mute functions, and the judge found the argument that the two functions were equivalent “unpersuasive.” ... 

ADDED: Here's Eugene Volokh's reaction:

[According to the court,t]he Tweets themselves aren't a forum, because they are the President's own speech; but the space for public replies is a forum. The court's concern is that replies are a valuable means for the repliers to speak to fellow members of the public. The court recognizes that there's no right to speak to the President in a way that the President is obliged to read; the President remains free, for instance, to use Twitter's "mute" function, which would keep him from seeing the user's replies when he reviews his own feed.

Volokh thinks that part is relatively easy, but this the question whether the President is acting as a private citizen or a government official:

[E]ven when the President is giving a public speech, he is understood at least in part as expressing his own views... [C]onsider a related issue under another First Amendment provision, the Establishment Clause—even Supreme Court justices who believe that the government may not endorse religion think that it's fine for government officials to express religious views in their speeches. 

"The great Body of the People in every Free Government, must always be considered as the Husband of the Constitution thereof, and..."

"... consequently that as long as such Constitution performs the duties of Love Honor and Obedience to Her great Constituent Body, or Political Husband, She is entitled to be Kept both in sickness and in Health, with all possible Love and Fidelity by such her said Husband and that on a breach of her Duty she must expect to incur the Pains and Penalties of Divorce.”

So said William Stuart to Griffith Evans, in the debate about whether to ratify the Constitution. New York, 11 July 1788 (CC Vol. 6, p. 258).  I found that at "Constitutional Metaphors, Similes, and Analogies" at the UW's Center for the Study of the American Constitution, where there are many other fascinating metaphors, all from the debates about ratification.

But are there any metaphors in the text of the Constitution?

The question occurred to me as I was reading the comments to the post about the Seventh Circuit case rejecting an Establishment Clause challenge to a public school "Christmas Spectacular" concert. I happened to mention the metaphor of the wall that should, it is sometimes said, separate church and state. Someone appeared to observe that the constitutional text makes no mention of any wall, and it occurred to me that we really don't want any metaphor in the Constitution or in any other legally operable text.

Is there even one metaphor in the Constitution? All I could think of is "no Attainder of Treason shall work Corruption of Blood" (in Article III). "Blood" refers to a person's descendants. But that scarcely counts as a metaphor. The use of the word "blood" like that goes all the way back to Old English. You might as well consider a metaphor to use "house" for the houses of Congress.

Metaphor is fine in arguments and explanations, so I think it's fine to say "wall of separation" if you want to speak of a strict interpretation of the Establishment Clause. Its absence from the Constitution doesn't mean that the strict interpretation is wrong, only that you don't put metaphors in a constitution.

But how do you like that William Stuart metaphor? The people are the husband and the Constitution is the wife and the Constitution must love, honor, and obey the people.

"The Seventh Circuit found an Indiana high school’s Christmas Spectacular concert constitutional after the school added Hanukkah and Kwanzaa songs and replaced its live nativity with mannequins."

"The parties put us in the uncomfortable role of Grinch, examining the details of an impressive high school production. But we accept this position, because we live in a society where all religions are welcome," wrote U.S. Circuit Judge Diane Wood, reported in Courthouse News Service.

The Freedom From Religion Foundation and ACLU of Indiana sued the school in October 2015 over the event, claiming it “represents an endorsement of religion by the high school and the school corporation, has no secular purpose, and has the principal purpose and effect of advancing religion,” in violation of the U.S. Constitution’s Establishment Clause....

“The religious nature of the nativity and the songs do not come off as endorsement in part because they make up only a fraction of the Spectacular, which as configured in 2015 is primarily a non‐religious seasonal celebration,” Wood said. “The Santas, jingle bells, and winter wonderlands of the first half all promote the secular aspects of the holiday season.... This would have been an easier case if the Christmas Spectacular had devoted a more proportionate amount of stage time to other holidays. But ultimately, we agree with the district court that in 2015 Concord sincerely and primarily aimed to put on an entertaining and pedagogically useful winter concert.” 

Can a public school require students to watch this video?

There is a lawsuit in federal court in New Jersey against a school that required students to watch this 5-minutes "Introduction to Islam" as part of the World Cultures and Geography course. Under Establishment Clause doctrine, there should be nothing wrong with teaching public school students about religion, but there are some problems with the video. As the plaintiff puts it:

The video, according to the lawsuit, "seeks to convert viewers to Islam and is filled with the religious teachings of Islam, presented not as beliefs, but as facts."

The lawsuit cites statements made in the video, including "Allah is the one God;" "The Quran is a perfect guide for humanity;" "Muslims created a tradition of unsurpassable splendor;" and concludes with "May God help us all find the true faith, Islam."

The text slides are set to a musical version of the poem "Qaseedah Burdah," which the lawsuit says, describes "Christians and Jews as 'infidels' and (praises) Muhammad in gruesome detail for slaughtering them."

I presume the educators who chose this video were thinking in terms of encouraging young people to respect and honor Muslims. The video emphasizes positive achievements — science, art, architecture — and positive values contained in the religion. But it does have the problem of simply asserting that various beliefs are true and seems almost to include the viewer in prayer. The use of hypnotic music throughout the video puts the viewer in a receptive, spiritual condition that is at odds with the justification that students are simply learning a lesson in world culture and geography.

"Perhaps the longer a violation persists, the greater the affront to those offended."

Wrote 4th Circuit Judge Stephanie D. Thacker, responding to dissenting Chief Judge Roger L. Gregory, who said that the fact that the 40-foot cross had gone unchallenged for 90 years is a reason to let it stay where it is, on a highway median in Prince George’s County.

WaPo reports.

The initial challenge in Maryland was brought by the American Humanist Association, a Washington-based group that represents atheists and others. The group did not dispute the monument is a memorial, but said in court that a giant cross on government property sends a message of exclusion in violation of the First Amendment....

At oral argument last December, Thacker and Wynn suggested the legal issues could be resolved outside of court by moving the site of the cross — or by cutting off the arms of the cross to form an obelisk.

What message is sent by the government's cutting off the "arms" of a cross?! Talk about a cure worse than the disease. Were these judges joking?

I'm linking to the Washington Post because that's where I first saw the story, but I was confused by its statement that the cross "has marked a major intersection in Prince George’s County for 90 years" and "had been public property for 50 years without a constitutional challenge." Here's the actual judicial opinion, with the statement "the Cross has stood unchallenged for 90 years."

If the Post is leaving such glaring mistakes, what does that suggest about about the things that are hard to notice and check? The linked article has been up since 2:57 PM yesterday. Does nobody over there at least try to clean up embarrassing shoddiness?

Also, now that I'm reading the opinion, I see that the idea of cutting off the "arms" of the cross seems to have come not from the judges but the appellants. Footnote 7:

Appellants later clarified their desired injunctive relief as removal or demolition of the Cross, or removal of the arms from the Cross “to form a non-religious slab or obelisk.” [Joint Appendix] 131.

This question of giving special respect to old monuments goes back to something Justice Breyer wrote in one of the 10 Commandments cases in 2005. Breyer's vote was the deciding vote, and as I explained back in 2011, when issue of the day was "Big Mountain Jesus":

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

That's the prevailing Supreme Court precedent to which we can compare the new 4th Circuit case. Think about that quote in the post title: "Perhaps the longer a violation persists, the greater the affront to those offended." But the longer the monument persists, the more taking it down feels like a message of hostility to religion.

Or do you think the people watching the arms cut off a cross would see the symbolic meaning as the enforcement of Establishment Clause values?

By the way, the obelisk originally "symbolized the sun god Ra, and during the brief religious reformation of Akhenaten was said to be a petrified ray of the Aten, the sundisk."


"Joseph Sells Grain" by Bartholomeus Breenbergh (1655).

The struggle to purge religion from public view will go on forever, because there is just too much religion embedded everywhere. To try to remove one thing is to create something else:

That was a nonapology from the leader of the Boy Scouts.

All day, I've been seeing that there was an apology, and I just got around to reading it:

I want to extend my sincere apologies to those in our Scouting family who were offended by the political rhetoric that was inserted into the jamboree. That was never our intent. The invitation for the sitting U.S. President to visit the National Jamboree is a long-standing tradition that has been extended to the leader of our nation that has had a Jamboree during his term since 1937. It is in no way an endorsement of any person, party or policies. For years, people have called upon us to take a position on political issues, and we have steadfastly remained non-partisan and refused to comment on political matters. We sincerely regret that politics were inserted into the Scouting program.

The leader (Michael Surbaugh, the Chief Scout Executive) is obviously reacting to criticism. He knows there are people who were offended, and he's mollifying them. It's not the most exaggerated form of nonapology, because he doesn't say I'm sorry if you were offended or I'm sorry that you were offended, but he's speaking to the offended and showing that he cares about their feelings.

It's also missing the most important element of an apology: An admission of wrongdoing. In fact, Surbaugh argues that the Boy Scouts did everything right. They were completely politically neutral, making the same invitation to the President that they always make and not intending for the President to inject any politics into the event. I'd say Surbaugh's purpose here is to defend the Boy Scouts and concede nothing.

Interestingly, Surbaugh does not even say that the President did wrong. The President got the standard invitation, accepted it, and showed up and said what he decided should be said. He was given a speech opportunity and he operated independently of the Boy Scouts, who just gave him the platform. He was free to speak, and, as is often the case, some people think he made some bad choices. What Surbaugh seems to care about is that the President's choices about what to say not be attributed to the Boy Scouts, because he, understandably, doesn't want any political positions to seem to belong to the Boy Scouts.

(It reminds me of cases in which a public school gives the valedictorian the podium at graduation and the valedictorian, given a speaker's slot, chooses to thank Jesus. The school isn't endorsing religion, just following a neutral policy of giving a forum to the student with the highest grades. In that situation, the school has an obligation to avoid taking a position on religion, and the valedictorian, speaking for herself, is free to thank Jesus. That can be accepted as perfectly fine.)

Something else that makes what Surbaugh said not a real apology is that there's nothing about the future. It sounds as though the Boy Scouts are going to keep doing what they've done since 1937 and invite the President to speak and that the President will be on his own. Surbaugh doesn't even say he hopes that the criticism the President received this year will influence Presidents in the future to keep politics out of the Jamboree speech. He just regrets that it happened this time. Regret is an element of an apology, but only one of several elements.

Conclusion: That was a nonapology.

"The Bayview Park Cross has stood in Pensacola, Fla., for around 75 years after being originally erected in 1941."

"Now, due to the recent declaration of a federal judge, the park has 30 days to remove it."

When the NYT forgets about the Establishment Clause and public education.

I was stunned at something in the article "Climate Science Meets a Stubborn Obstacle: Students," which focuses on an Ohio public school teacher, James Sutter, who's having trouble getting his lesson across to a student named Gwen Beatty, who, we're told, is a straight-A student.

When she insisted that teachers “are supposed to be open to opinions,” however, Mr. Sutter held his ground.

“It’s not about opinions,” he told her. “It’s about the evidence.”

“It’s like you can’t disagree with a scientist or you’re ‘denying science,”’ she sniffed to her friends.

Gwen, 17, could not put her finger on why she found Mr. Sutter, whose biology class she had enjoyed, suddenly so insufferable. Mr. Sutter, sensing that his facts and figures were not helping, was at a loss. And the day she grew so agitated by a documentary he was showing that she bolted out of the school left them both shaken.

“I have a runner,” Mr. Sutter called down to the office, switching off the video.

He had chosen the video, an episode from an Emmy-winning series that featured a Christian climate activist and high production values, as a counterpoint to another of Gwen’s objections, that a belief in climate change does not jibe with Christianity.

“It was just so biased toward saying climate change is real,” she said later, trying to explain her flight. “And that all these people that I pretty much am like are wrong and stupid.”

A public school teacher chose a video for the purpose of presenting an argument based on Christianity?! It's supposed to be a science class. It's not a class about the history of religion or comparative religion. As the NYT presents it, the teacher was introducing religious material for the purpose of bolstering a scientific conclusion.

Here's the video. It's almost an hour long, and I haven't watched it yet.



I don't know how much religion is in the video, and I'm not giving a legal opinion on whether the teacher violated the Establishment Clause. We can discuss that. I just want to call out the New York Times for its inattention to the Establishment Clause, which it usually expects its readers to take very seriously, especially in the context of educating children.

It makes me suspect that those who are demanding that we believe in climate change really are operating in a religion mode and that does not inspire confidence in science.

And, really, why is it so important for Miss Beatty to believe in climate change? She has an active and inquisitive mind. Why not feed it and support it and empower her to go where she sees fit? Bullying her with demands for belief — even without the religion larded in — isn't likely to inspire her to take on a STEM career.

I'd like to read the comments on this NYT article, but — despite the paper's new reliance on comments in lieu of a Public Editor — comments are not enabled for this one.

ADDED: "I have a runner" — that's weird. They have a word for kids like her? "Runner" made me think of "Logan's Run":

In the year 2274, the remnants of human civilization live in a sealed city contained beneath a cluster of geodesic domes... The citizens live a hedonistic life but, to maintain the city, everyone must undergo the ritual of Carousel when they reach the age of 30... [E]ach person is implanted at birth with a "life-clock" crystal in the palm of their hand that changes color as they get older and begins blinking as they approach their "Last Day." Most residents accept this promise of rebirth, but those who do not and attempt to flee the city are known as "Runners." An elite team of policemen known as "Sandmen"... are assigned to pursue and terminate Runners as they try to escape....

RUNNER!