A newish strategy of the religious right is to use the appeal to free speech rights as a way around standard church-state prohibitions. So, military chaplains should be able to pray "in Jesus' name" at mandatory military events that troops of all faiths are required to attend. And, other ceremonial prayers like those opening legislative sessions should be able to also express sectarian viewpoints they say. That sounds nice, of course - that ministers shouldn't have their prayers dictated by the government. But you just have to follow the logical conclusion and what we would have is a military and a Congress that opens all its events with Christian invocations, instead of the generic prayers acknowledging God that the Supreme Court has allowed.
The new argument of those on the religious right is that curtailing those expressions, and those of students who want to - for example - bash gay students with rhetoric about their impending descent into hell - are violations of their free speech rights.
But this new love of free speech has forced them to get in the middle of some unexpected skirmishes. Today, the Supreme Court will hear argument in the case of a student who unfurled a banner that read "bong hits 4 jesus" at a parade for which students had been dismissed from school to participate. The principal demanded its removal and then forcibly destroyed it when the student refused. The student had his initial punishment doubled for, apparenly, quoting Thomas Jefferson to the principal. Interestingly, the Bush Administration is taking the side of the school - arguing for control of the environment and ability to censor expression that violates the central educational mission of the school. And religious groups have lined up on the other side, arguing for enhanced rights of student expression.
I have mixed feelings. I want to support the rights of schools to maintain order.
But I have to come down on the side of the student here despite his admission that the banner was not trying to say anything about anything, only tried to come up with something that would piss off the principal (it worked). Personally, I think free speech arguments for protest work better when there's actually something you're trying to protest, or something you have to say. But here, the government is over-reaching, as Marty Lederman indicates at ScotusBlog. It's a bit painful to side with religious conservatives, especially knowing that essentially the purpose of their concern is to support Christian young people in their continued harassment and demonization of fellow students. But legal arguments, I suppose, sometimes makes for strange bedfellows.
I'll read the oral arguments later today, and if anything interesting is said, will post it tonight or tomorrow.