Monday, August 5, 2019

Word of the Month for August 2019: Stare Decisis

Playing off mom and dad to get what you want
Do you remember being a kid?  Specifically, do you remember going to mom for something and then going to dad when mom said no hoping that dad would give a more favorable response?  

Yeah, happens all the time.  The other day, my kid tried that.  She saw a toy in the store and, turning to mom said, "can I have that?"  When mom said, "NO!" she turned around (I was standing maybe 3 feet away) and said, "Dad, can I have that?"  I gotta wonder if she even realized that mom was still standing there when she asked me.

Thing is, these days law and the decisions courts hand down are very much like that.  People go to one court, don't get what they want so they go to another court asking for, basically, the same thing.  

The kicker is that unlike parents (who, hopefully, are on the same page and the kid realizes that it's unlikely dad will overrule mom), it is critical that courts make the same rulings over and over so that people know how law will be applied.

Take, for example, the 1st Amendment of the United States of America.  The 1st Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Dialing in on the religion section, things seem pretty straight forward, huh?  Congress shall make no law respecting the establishment of religion..."  To help clarify things, the SCOTUS has, over the years, handed down a number of cases dealing specifically with the unlawful established of religion.  

In School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203 (1963), the Court considered whether a Pennsylvania law and policy of the Abington School District requiring public-school students to participate in classroom exercises involving daily Bible verse reading violated the religious freedom of students under the First and Fourteenth Amendments. 

In an 8-1 decision, the Court found that the Pennsylvania law and school-district practice violated the Establishment Clause and the Free Exercise Clause.

Huh!  Imagine that - the SCOTUS ruled that schools can't force students to recite bible verses.  Imagine my chagrin and surprise, then, when I read an article about a 13 year-old girl who was forced to read an Islamic prayer of conversion - the Shahada - and say there is  “No God, but Allah.  

In Wood v. Arnold, the parents of Caleigh Wood sued Charles County Public Schools in Maryland, the county board of education, and Evelyn Arnold and Shannon Morris, principal and vice principal of La Plata High School for violating a student’s (i.e. their daughter's) First Amendment rights under either the Establishment Clause or the Free Speech Clause.

Sounds like a clear violation of the 1st Amendment, doesn't it.  I mean, looking at Schempp, this sounds like a clear violation of this girls rights, right?  Turns out, however, that the Wood's lost their case in the Federal District Court our of the State of Maryland and, subsequently, lost their appeal in the United States Court of Appeals for the Firth Circuit.  

Of course, this brings us to our word of the month: STARE DECISIS.  According to Black's Law Dictionary, STARE DECISIS means:
Latin: To stand by things decided.  The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.  The doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases.
Soooooo, the problem here is not so much how the SCOTUS might rule as it is how a court in Maryland might rule in a given scenario.  Huh.  Well, looking at cases dealing with Maryland and religion, it appears Maryland has a history of dubious rulings on state and religion.  

In the early 1960s, the Governor of Maryland appointed Roy Torcaso as a notary public. At the time, the Constitution of Maryland required "a declaration of belief in the existence of God" in order for a person to hold "any office of profit or trust in this State.  Mr. Torcaso took exception to this and filed suit - and lost in Maryland.  

Eventually Torcaso v. Watkins made its way up to the SCOTUS which held that Maryland's requirement for a person holding public office to state a belief in God violated the First and Fourteenth Amendments to the United States Constitution.

Then there was the case of McGowan et al. v. Maryland in which Maryland had enacted a series of "Blue Laws" prohibiting work on Sunday.  The SCOTUS held that while Maryland's Blue Laws were lawful, it added that "We do not hold that Sunday legislation may not be a violation of the "Establishment" Clause if it can be demonstrated that its purpose is to use the State's coercive power to aid religion."

It would appear, based on the language in McGowan, that the Wood's will be successful in their appeal.  What is sad is that Maryland couldn't just concede recognizing that the need to be right may be less than the need to follow the law of the land.

I'm just sayin.


  1. I have to admit that I'm genuinely confused. Am I reading those two cases wrong? I thought in the in Bible verse case the recitation of verses was NOT part of a class on comparative religion or history but seemed, to me, to be almost a religious service so it would make sense that a public school couldn't force students to participate. The Shahada case was in the context of a world history/comparative religion class and the student was just filling in a worksheet (same as doing homework?), and not being forced to recite as part of a religious observance. It was a knowledge test wasn't it? Not a forced conversion. What am I missing?