A First Amendment Divided: State University Campuses in the Wake of Rosenberger v. University of Virginia (original) (raw)
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Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression may have greater rights. The Court’s 2020 decisions in Espinoza v. Montana Department of Revenue, and Our Lady of Guadalupe School v. Morrissey-Berru, reinforce and expand the “special solicitude” of religion. Indeed, Espinoza and Our Lady have profound implications for student re...
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The issue of the use of religious symbols by the State, the Government, the Municipalities and Courts has emerged as a practical constitutional problem during the last quarter of a century. Contradictory examples of US Supreme Court jurisprudence prove that this issue is among the constitutional 'hard cases'. The relatively recent appearance of the problem clearly indicates the ways in which American social conditions have changed and the transformation of US society's attitude to religion.
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In the years after World War II, the Supreme Court under Chief Justice Fred Vinson upheld nearly every aspect of the Cold War anti-communist crusade that came before it, including loyalty investigations of teachers and professors. Although Earl Warren, appointed Chief Justice in 1953, led the Court in a more free speech-friendly direction, change came haltingly. It was not until Keyishian v. Board of Regents in 1967 that the Court rejected the underlying premises of government loyalty programs and declared academic freedom a “special concern of the First Amendment.” Justice William Brennan’s opinion in Keyishian did not clarify the scope or substance of academic freedom, and in the years that followed, the concept remained murky. After the Court’s 2006 ruling in Garcetti v. Ceballos, it is unclear whether the Court will even continue to recognize the core of First Amendment academic freedom: teaching and scholarship.
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