In September 1992, a Florida judge issued an injunction (court order) forbidding anti-abortion protesters from trespassing on, blocking, or physically abusing persons attempting to use any abortion clinic in Brevard or Seminole County. This injunction was issued in response to threats by members of Operation Rescue and others to "close down abortion mills."
After the injunction was issued, several hundred people demonstrated outside an abortion clinic. Demonstrators attempted to speak and hand literature to people in cars entering the clinic's parking lot. Individual protesters shouted such things as, "Mommy! Don't Kill Me!" Protesters sang, chanted, played music from boom boxes, made speeches, and carried signs like, "Abortion Kills Children."
The protest upset clinic clients, causing some to drive away and miss their appointments. Those who did enter the clinic for abortions were bothered by the noise outside and sometimes had to be heavily sedated to relieve their anxiety. In addition, employees of the clinic complained that they were harassed.
In response to a complaint from the clinic, the Florida judge issued an "amended injunction" that placed restrictions on the "pro-life" demonstrators. Among these restrictions, protesters could not:
- Demonstrate in a "buffer zone" extending 36 feet from the front of the clinic. This included the public street and sidewalks.
- Within a 300-foot zone, approach anyone seeking the services of the clinic unless that person indicated a desire to communicate.
- Sing, chant, whistle, shout, or use a horn or sound equipment on specified times when operations were taking place.
- Carry or show any signs observable from within the clinic during the same specified times.
- Demonstrate, block entrances, or use sound equipment within 300 feet of the residences of clinic employees.
QUESTION: DO ANY PARTS OF THE AMENDED INJUNCTION PLACE AN UNNECESSARY BURDEN ON THE "PRO-LIFE" PROTESTERS' FIRST AMENDMENT RIGHT OF FREE SPEECH?
Judy Madsen and other anti-abortion protesters argued that the amended injunction was not aimed at their actions but at suppressing their beliefs and freedom of speech in violation of the First Amendment.
The clinic's owners responded that the injunction did not place an "unnecessary burden" on the First Amendment, but it did serve a "significant state interest," which includes maintaining public safety.
Satmar Hasidic Jews are a conservative religious group. They speak Yiddish, follow strict customs, and try to isolate themselves from the surrounding world. In the 1970s, some Satmars moved to Monroe, New York, set up a religious community, and formed the Village of Kiryas Joel. The boundaries of the village were drawn to include only property owned by Satmar families.
Most of the 5,000 or so children of the village attend yeshivas, private Jewish schools that teach religious as well as regular academic subjects. But special-education programs for deaf, blind, and other learning-disabled Satmar students are too expensive for the yeshivas. For a while, the learning-disabled students from Kiryas Joel attended special-education classes in nearby Monroe public schools. But public school students often ridiculed and harassed the Satmar children. Moreover, the public school exposed Kiryas Joel students to cultural influences that Satmars wanted to avoid.
In 1989, Kiryas Joel parents petitioned the New York state legislature to pass a special law establishing a separate public school district to serve the Satmar learning-disabled children. The resulting Kiryas Joel Village School District consisted of one school with about 40 full-time and another 100 part-time special-education students.
The new district's boundaries fell entirely inside the village boundaries of Kiryas Joel. Only Satmar students attended this public school district, which was governed by a school board made up solely of Satmar Hasidic Jews from the village. Nevertheless, neither the district superintendent nor any of the teachers were members of the Satmar religion (which forbids college education). Furthermore, none of the district's special-education classes included any religious instruction.
QUESTION: DOES THE NEW YORK LAW SETTING UP A PUBLIC SCHOOL DISTRICT WITHIN THE VILLAGE OF KIRYAS JOEL VIOLATE THE FIRST AMENDMENT'S PROHIBITION ON LAWS "RESPECTING AN ESTABLISHMENT OF RELIGION"?
The New York State School Boards Association claimed that the special public school district created within the village of Kiryas Joel violated the Supreme Court's long-held "test of neutrality." This interprets the establishment clause of the First Amendment to mean that governments may not aid religion or favor one religion over another.
The Kiryas Joel school district argued that the special law's only purpose was to provide for the special-education needs of a group of children who all happened to belong to the same religion; its purpose was not to aid or advance the Satmar religion.
During jury selection, each side in a case is given a certain number of "peremptory challenges." These challenges enable an attorney to excuse some of the prospective jurors without having to give a reason. All other potential jurors can only be excused for cause (a reason acceptable to the judge).
J.E.B. v. Alabama ex rel. T.B. was a paternity case deciding whether James E. Bowman (J.E.B.) was the father of a child born to Teresa Bible (T.B.). During jury selection, the state used its peremptory challenges to excuse men. As a result, the state managed to secure an all-female jury. This jury found Bowman to be the father, and he was ordered to pay child support.
QUESTION: DOES THE INTENTIONAL USE OF PEREMPTORY CHALLENGES TO EXCUSE PROSPECTIVE JURORS SOLELY ON THE BASIS OF GENDER VIOLATE THE EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT?
Bowman argued that rejecting jurors solely on the basis of their gender violates the 14th Amendment's equal protection clause. Bowman referred to a 1986 Supreme Court case, which ruled that peremptory challenges violate the 14th Amendment when they are used to try to eliminate prospective jurors solely on the basis of their race. [Batson v. Kentucky, 476 U.S. 79 (1986)]
Alabama responded that the purpose of the time-honored peremptory challenge is to give to lawyers the widest flexibility in excusing prospective jurors who may be biased. It is not unreasonable, the state argued, to assume that men would tend to be more sympathetic (and thus more biased) toward the alleged father in a paternity case.
- Judy Madsen and the other anti-abortion protesters claimed that the amended injunction was not justified because they never violated the judge's first injunction. Based on the facts presented in the article, do you agree or disagree? Why?
- What made the Kiryas Joel Village School District different from other public school districts? What made it similar?
- Why do you think the state of Alabama wanted to eliminate men from the jury in James E. Bowman's paternity trial?
A C T I V I T Y
You Make the Decision
- Divide the class into groups of about nine students. Each group will play the role of the U.S. Supreme Court.
- Each court will decide one of the cases presented in the article. (Note: The same case may be assigned to two courts.) After reading their assigned case, the justices discuss the case's question, vote on the question, and then write individual opinions. In their written opinions, the justices should refer to information from the case, the Constitution, and possibly other sources such as Supreme Court precedents.
- Each court will present its decision to the rest of the class. A chief justice should be selected by each court to summarize the facts of its case, state the question, and announce the vote of the justices. Each justice should then give reasons for his or her decision. Justices on the other courts may then ask questions or challenge the decision.
[The actual results of the three Supreme Court cases may be found below.]
DECISIONS OF THE SUPREME COURT
Madsen et al. v. Women's Health Center, 62 U.S.L.W. 4686 (1994)
Delivering the opinion of the 6–3 majority, Chief Justice Rehnquist upheld parts 1 and 3 of the amended injunction while finding parts 2, 4, and 5 to be an "unnecessary burden" on the freedom of speech of the anti-abortion protesters. He stated that the two constitutional parts "imposed restrictions on petitioners incidental to their antiabortion message because they repeatedly violated the court's original order." Writing in dissent, Justice Scalia remarked that the abortion issue had claimed "its latest, greatest, and most surprising victim: the First Amendment."
Board of Education of Kiryas Joel Village School District v. Grumet et al., 62 U.S.L.W. 4665 (1994)
Deciding 6–3 that the New York law violated the establishment clause of the First Amendment, the court (in an opinion by Justice Souter) agreed that the First Amendment allows the state to accommodate religion in certain situations (e.g. allowing release time for public school students to receive religious instruction). But in this case, it said, the government went over the line of neutrality. Justice Souter suggested several alternatives for providing for the special-education needs of the Satmar children, including a school operated by the nearby Monroe school system that might be located near one of the village yeshivas. In dissent, Justice Scalia found no evidence that the law favored the Satmar religion "as opposed to meeting distinctive secular [non-religious] needs or desires of citizens who happened to be Satmars."
J.E.B. v. Alabama ex rel. T.B., 114 S.Ct. 1419 (1994)
The court decided 6–3 in favor of James E. Bowman. Justice Blackmun wrote that, as in the case of race, "the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man." Dissenting, Chief Justice Rehnquist remarked that men and women differ biologically and in life experiences. Therefore, using peremptory challenges to dismiss all men or all women from juries in certain cases may be justified. [Note: James E. Bowman will now get a new paternity trial.]