Tags: Religion | supreme court | kagen | gilbert | church | arizona

Kagan '96 Law Article Figures in 1st Amendment Case Before Court

By    |   Tuesday, 06 Jan 2015 12:15 PM

In a case about to come before the Supreme Court on Monday, few justices are as well qualified to rule on it as is Justice Elena Kagan.

Fourteen years before she assumed her current position in 2010, Justice Kagan authored an article in the University of Chicago Law Review which, The New York Times reports, directly applies to a squabble over signage between a small church and the town of Gilbert, Arizona.

The Good News Community Church of Gilbert, and its pastor Clyde Reed, have taken the city to court, charging that the city's regulation on signs is discriminatory and a violation of the First Amendment, because it allows larger signs for political advertising than it does for the church's directional sign, the suit states.

In its brief, the church states, "If a sign says 'Vote for McCain,' it can be 32 square feet, but if it says 'Learn Why Voting Matters, Visit Good News Community Church,' it can only be six square feet."

The city argues that its sign regulations, which set distinctions in sizes for various types of signs, are a matter of "safety and aesthetics" and do not relate to the content of the signs, the Times said. In fact, the city states in its court brief that "the content-neutrality test should be applied flexibly."

Kagan's 1996 article discusses the differences between content and content-neutral motivation as it relates to the First Amendment.

"First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives," Kagan wrote.

"The doctrine comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point another way, the application of First Amendment law is best understood and most readily explained as a kind of motive-hunting."

"Simply put, to prevail in this case, Gilbert must explain why a 32-square-foot sign displayed in the right-of-way virtually all year long is not a threat to safety and aesthetics if it bears a political message, but it is such a threat if it invites people to Good News' church services," the church noted in its brief.

Kagan's article is so influential in the case that it has been cited in four briefs filed before the court, the Times notes, and also was cited by Chief Justice John G. Roberts in June in a decision involving buffer zones for those protesting abortion clinics in Massachusetts.

However, even Kagan may have her uncertainties about the case. She noted in the article, "I make no claim that a sensible system of free speech should be concerned exclusively with governmental motivation."

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In a case about to come before the Supreme Court on Monday, few justices are as well qualified to rule on it as is Justice Elena Kagan, who penned an article in 1996 that directly applies to a squabble over signage between a small church and the town of Gilbert, Arizona.
supreme court, kagen, gilbert, church, arizona
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2015-15-06
Tuesday, 06 Jan 2015 12:15 PM
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