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First Amendment Fun at the Ninth Circuit

The Ninth Circuit hearts the First Amendment.

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This week is an exciting one for conservative and libertarian legal nerds: the National Lawyers Convention of the Federalist Society starts tomorrow. I’ll be attending and covering the proceedings; if you see me, please say hello. (If you haven’t registered for the conference in advance, you can still register at the door.)

As always, the conference will overflow with legal luminaries. This year, two of the Ninth Circuit’s most notable names — Chief Judge Alex Kozinski, and Judge Diarmuid O’Scannlain (for whom I clerked) — will be making presentations. Chief Judge Kozinski will debate Professor Hadley Arkes about natural law and constitutional law, while Judge O’Scannlain will moderate a panel about religious liberty.

To whet your appetite, let’s read more about both of these judges and some recent First Amendment fun at the Ninth Circuit….

It’s natural for Judge O’Scannlain to lead a discussion about religious liberty; he has a longstanding interest in the religion clauses of the First Amendment, and he has written a number of prominent opinions in the area. And it should come as no surprise that he had a little fun at a recent Ninth Circuit oral argument, as reported by the Courthouse News Service:

How would a prayer at city council meetings in California hold up if the invocation mentioned Tom Cruise or Scientology, a 9th Circuit judge asked.

“What if someone has an objection, not to Jesus Christ, but to Abraham or Mohammed or Martin Luther, Confucius, Buddha?” Judge Diarmuid O’Scannlain asked. “I mean we can make a long list, Tom Cruise and Scientology. Where do we draw the line?”

As a box-office god, Tom Cruise deserves to be worshiped in Hollywood. Move over, Xenu.

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The judge put the amusing hypothetical to a lawyer fighting the recitation of prayers referring to Jesus at the start of every City Council meeting in Lancaster, Calif.

Shelly Rubin and Maureen Feller filed suit over the practice in 2010, but a federal judge in Los Angeles ruled last year that the prayer survived the test laid out by the Supreme Court in 1983.

It’s a rather interesting fact pattern. You can read more, and figure out how you’d rule in the case, over at Courthouse News.

Meanwhile, Chief Judge Kozinski, a colorful and outspoken jurist, is a fan of the First Amendment as well — especially the Free Speech Clause. He and one of his former law clerks, UCLA law professor and First Amendment expert Eugene Volokh (of Volokh Conspiracy fame), recently spoke about threats to the First Amendment before the Children of Jewish Holocaust Survivors. (Chief Judge Kozinski is himself the son of Holocaust survivors.)

I’m in the middle of listening to the discussion, which runs a little over 90 minutes, and so far it’s quite fascinating (especially for me as a journalist, someone with a keen interest in free speech). Check it out via the embed below:

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Tom Cruise and the Establishment Clause [Courthouse News Service]
Threats to the First Amendment with Honorable Alex Kozinski and Eugene Volokh [YouTube]
Threats to the First Amendment with Honorable Alex Kozinski and Eugene Volokh [Children of Jewish Holocaust Survivors]

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