The U.S. Supreme Court did not issue any merits opinions today, but there were two dissents from denials of cert. that merit attention, both concerning the First Amendment.
One of them has particular importance for parents interested in the rights and limits of their children’s self-expression in their schools. The other, which affects only a small group of people, is worthy of note, if for no other reason than that it is passionately and beautifully written.
The first of these cases that could not command the votes of four Justices, the number required for cert. to be granted, was L.M. v. Town of Middleborough. As Justice Alito, who was joined in dissent by Justice Thomas, asserted, the case which the dissenters believed was one “of great importance for our Nation’s youth” concerning “whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive.”
The case concerned a middle school that, according to the dissent, “permitted and indeed encouraged student expression endorsing the view that there are many genders.” The petitioner, a seventh grader, was barred from class unless he removed a t-shirt that said “There Are Only Two Genders,” and a later version where the words “Only Two” was blocked out and overwritten with “CENSORED.” When the student, through his parents, sued, claiming a violation of his First Amendment rights, the U.S. Court of Appeals for the First Circuit ruled against him, holding that the general prohibition against viewpoint-based censorship does not apply to public schools. While there was no written explanation for the majority’s denial of cert., the dissenters question its consistency with Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969).
This blog takes no position on whether the Court was justified in denying cert. as a matter of school discipline and concern for students who identify as non-binary or otherwise gender non-specific, or was, as the dissenters argue, an exercise in political correctness. Nevertheless, this latest chapter in a continuing sequence of cases concerning the application of the First Amendment in school settings is worthy of attention.
The second case that could not command four votes for cert. was Apache Stronghold v. United States, and it should be unsurprising that the primary dissenter was Justice Gorsuch, who, joined by Justice Thomas, sided with an Indian band of Western Apache. Gorsuch has always shown himself to be a strong supporter of Indian rights and interests. This case concerns a site known as Chích’il Bił Dagoteel, or Oak Flat, which the Indians consider to be sacred and a “direct corridor to the Creator,” and where the tribe conducts “religious ceremonies that cannot take place elsewhere.” While Oak Flat had long been a protected site, the government engaged a mining contractor to turn the site into what Justice Gorsuch called “a massive hole in the ground” to gain access to and extract copper. This crater—perhaps 1,000 feet deep and nearly two miles wide—will permanently “destroy the Apaches’ historical place of worship, preventing them from ever again engaging in religious exercise” at Oak Flat.
Acting on behalf of the tribe in attempting to block the destruction of their sacred site, an interest group sued under the Religious Freedom Restoration Act of 1993 (RFRA), claiming a violation of their free exercise of religion. Readers might remember RFRA, a law that prevents the federal government from “substantially burden[ing] a person’s exercise of religion,” as the centerpiece of several free exercise and establishment cases, perhaps most notably, Burwell v. Hobby Lobby Stores, Inc. The picture painted by Justice Gorsuch’s rich and poignant discussion is consigned to our memory and conscience, but no further consideration by a Court that could not summon four votes to grant certiorari.
These dissents from the denial of cert. are to be consigned to the catalog of unanswered prayers. Sometimes, those petitions are worth knowing about for the quality of their writing and their contributions to public discourse about issues of concern in a divided society.