Legal Commentary

I've posted a new paper on SSRN, titled "Of Football, 'Footnote One,' and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe."  It will appear in a new book in the Law Stories series, First Amendment Stories, edited by Andy Koppelman and our own Rick Garnett.  My chapter deals with the Santa Fe case, in which the Court struck down an election mechanism that provided for student-led prayer before high school football games.  I argue that much of the reason for the failure of this mechanism, which the school district argued was a "circuit-breaker" between impermissible government speech and permissible private speech, can be found in the neglected first footnote to the opinion, which discusses official and private efforts to ferret out the identity of the "Doe" plaintiffs in the case; this, I argue, tells us something about how the Establishment Clause should be applied in overwhelmingly religiously homogenous communities.  I argue for similar reasons that, contrary to the trend among some scholars and one Justice (Justice Thomas), the Establishment Clause is, if anything, best applied more strictly at the state and local level than at the national level, and not vice versa.  

Here are the opening paragraphs of the piece:

The saying goes: Don't Mess With Texas.  So how do you mess with a Texan?  You could start by messing with two things a Texan holds dear: God and football. 

Comments are always welcome.  Enjoy.