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According to https://local12.com/news/local/student-religious-liberty-act-sponsor-says-it-protects-rights-critics-say-its-not-needed, Rep. Catherine Ingram argued that a recent bill in Ohio - requiring employees of public schools to respect certain religious freedoms of students - was "redundant and unnecessary" because the rights it purported to grant were already afforded to students by the First Amendment.

Let's suppose, for the sake of argument, that it is true that the rights described in the state law are indeed all ones that are already granted, clearly, by the constitution. Let's also suppose that both the bill and the current Constitutional case law are clear enough that it's unambiguous that this is the case. Does Ingram's conclusion then follow? Does having a right granted by the Constitution indeed mean that encoding that same right in state law has no legal effect?

Or can the "redundant" encoding of such a right in state law in fact have some effect - perhaps by impacting what entities can be sued for violating the right, or in what sort of court?

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If they are word-for-word the same, no

However, if they are different, courts will treat them as different and try to give effect to that difference. The general attitude of courts is that if the politicians took the time to draft, debate and pass legislation it must have a purpose. This will generally have the result of broadening the actions that are afforded the protection so that actions that were not protected by the Federal law now might be protected by the State law.

It's also possible that by enacting a State law that may (intentionally or not) engage other state laws including, for example, one that gives a right to sue or engages criminal or civil penalties for breaching State law that may not exist for a breach of Federal law only.

It also throws precedent into confusion. While it is likely that existing precedent would apply to the State based law its also possible (because the statutes are not word-for-word identical) that there would be some confusion leading to more litigation until the precedent settles. This is probably not a good thing.

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While it is true that the states may not violate the rights afforded to citizens of the United States, it was not always the case. The Civil War was fought in part about this matter of law with respect to abolition of slavery (The Union argued that states could not violate protections in the Constitution. The Confederacy argued that it could because the Constitution only listed the things the Federal Government could do. The 14th Amendment (one of three that were brought about in the aftermath of the civil war) was in part added to fix this problem (introduced by a read of amendments 9 and 10. I'm doing a TL;DR on the loophole but suffice to say, it's a bit of a weird explination).

That said, Rep Ingram is technically wrong, as everyone in the United States lives under dual sovereinties. This means that if you commit a crime in the state of Ohio that is also a crime per Federal Criminal Law, you are responsible for violating the law in both jurisdictions and could potentially face two trials for the same action (though this is rare, it's not unheard of). Murder is a great example of this because every state has at least case law crimilizing murder (as opposed to "Law on the books" codified law... case law is "Once upon a time, 12 people said someone was a criminal because he killed someone else. So everyone else now says they are guilty if the same circumstances are done by another person. Also... we only wrote down the laws of sentancing these people, not the legal definition of the criminal act) (Fun fact, a lot of Free Speech law in the United States is case law because it was determined by SCOTUS).

Any way, back to murder most foul. The feds can't try state crimes and states can't try federal crime. Murder is both a state crime and a federal crime. This means that the state of Ohio can hold a trial for a murder committed in the state of Ohio and the Department of Justice (federal) can try the same murder because it fell within U.S. Territory Holdings, specifically the state of Ohio. This does not violate Double Jeopardy because Double Jeopardy only stops the same court from hearing the same case about the same action. If a different court also has Jurisdiction, it can, in theory, also here the case as well, and punish according to their law. In practice, this is rare and Federal Government does have a policy that requires there to be a very good reason to try a suspect previously tried by a state (Usually, the charged crime is not the same. Frequently the Feds will try a criminal for a Hate Crime while a State where there is a different hate crime standard is lacking or the charge wasn't applied by the state. The Feds could also do this if they feel the state's sentence was grossly not severe enough (usually if the sentanced time by the state is half that for the Feds for one similar charge.

On the Flip Side, the Supreme Court has ruled that while States must comply with the protection of citizens rights compliant with the Bill of Rights, they ruled that there "Ain't no rule that a state can't protect rights not enumerated in the Constitution, or protect rights greater than those in the Constitution. Furthermore, the Constitution has exactly one criminal law in Constitution (Article III makes it illegal to criminlize Treason and requires at least two independent eyewitness to convict.). All the rests can only be violated by the government or an agent there. Most citizens will never do something that violates the Constitution and it only applies to what Government can or cannot due. Note the language of the First Amendment which begins with "Congress shall make no law..." and then lists a five topics of things they can't legislate about.

Compare to this, which requires teachers employed by the State to do a certain action or violate a law. Teachers, for example, are required to report all physical evidence of possible abuse they observe on a child to social services under penalty of law. This law would require teachers to respect all student religious practices in school under penalty of law. In the United States, education is a state level issue, not a Federal one. And the government, while in the role of an employer of government work, can restrict employee speech as if it was a private company not bound by the first amendment.

Thus, the Ohio Bill is not redundent because it is a law that restricts government employee's speech (Teachers opinions on religion) while they are "on the clock" as a condition of continued employment. Since the First Amendment doesn't protect political speech of government employees while doing work for the government, the Federal Government is not the government employing the teachers of Ohio, so they can't make a law telling Ohio teachers to respect religious practices any more than it can try an Ohio citizen for a crime that they don't have jurisdiction over (it's illegal in Ohio, but not in the United States).

So Rep. Ingram is wrong because the core issues' is not protecting the student's religious liberty (SCOTUS has ruled that students may engage in religious practices in school (with in reason) so long as it is not led by school employees (they may be required to act as a chaperone, but they cannot have a part in running the club or endorsing it). Rather, the law is that stating that the government is limiting it's employees own speech about their personal opinions on any and all religious subjects while they are working as employees of the State of Ohio through it's school systems.

This is neither a protection of the First Amendment (it's an exception) nor is it redundant (since Ohio state law is the highest law of the Ohio School system, rather than the U.S. Federal government. There's a specific clause in the Constitution that basically says "When in doubt about who gets a specific government power, assume it's the state unless the Feds meet some burden of proof that it's their power". Typically the Federal Government does not have any compelling reason to meddle in specific school systems in the United States.). The law is politely informing teachers that any discussion the superiority of one religious belief over another religious belief system while employeed is a violation of the law (likely a civil offense with the teacher's firing the likely outcome). Students on the other hand, are free to hold "My God is bigger than your God" style debates with their classmates when appropriate to hold such conversations.

As a whole, primary students First amendment speech rights are not nearly as protected when conducted through school related activities (Multiple SCOTUS cases on this) though they are fully protected for activities not related to school functions or affiliated with them, even during enrollment.

  • There are many things wrong with this answer. Most importantly, it's enormous and mostly irrelevant to the question I asked. But there are also several things that I'm pretty sure are outright errors. – Mark Amery Nov 19 '19 at 18:38
  • 1. "Article III makes it illegal to criminlize Treason" - not according to Wikipedia, which says "The Constitution does not itself create the offense [of treason]; it only restricts the definition ... [and] permits the United States Congress to create the offense". Not that this has anything to do with the question anyway, as far as I can see. – Mark Amery Nov 19 '19 at 18:42
  • 2. "Thus, the Ohio Bill is not redundent because it is a law that restricts government employee's speech (Teachers opinions on religion)" - eh? Pretty sure this is untrue. I don't see anything in the text of the bill that restricts teachers from voicing opinions on religion. (Although, again, this is irrelevant to the question I asked.) – Mark Amery Nov 19 '19 at 18:44
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    3. "Double Jeopardy only stops the same court from hearing the same case about the same action" - no, the Double Jeopardy clause of the 5th Amendment only stops the same sovereign from prosecuting someone twice for the same action. The feds can't simply proescute you again for the same actions in a different federal court and somehow dodge double jeopardy. Beyond that, "double jeopardy" is not just a 5th Amendment thing. Some states have Double Jeopardy statutes that are aimed at preventing someone from being prosecuted federally and at state-level for the same offence. – Mark Amery Nov 19 '19 at 18:51
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    4. "the government, while in the role of an employer of government work, can restrict employee speech as if it was a private company not bound by the first amendment." - not true. The government gets more leeway to impose speech restrictions on government employees than other citizens, but not infinite leeway. The courts apply a balancing test of governmental interest against employee rights to determine whether a particular speech restriction is a First Amendment violation. See law.cornell.edu/constitution-conan/amendment-1/…. – Mark Amery Nov 19 '19 at 18:57
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Laws sometimes have symbolic effect and are passed to make a point. In this case, there could be a legal effect. First, also recall that the Ohio Constitution restates numerous fundamental rights already guaranteed in the US Constitution, but uses different language – it is more explicit in what freedoms are protected. That means that government action is restrained by two different sets of principles, and must be consistent with both. If the US First Amendment were repealed or significantly modified, Article 1 of the Ohio Constitution would still protect many of those rights (it would be very difficult to calculate the difference).

Likewise, the proposed law explicitly states things which are only taken to be implicit in the First Amendment because of how federal courts have ruled on issues. The law explicitly says that

The board of education of each school district may provide for a moment of silence each school day for prayer, reflection, or meditation upon a moral, philosophical, or patriotic theme.

If the Columbus BOE were to mandate such a moment of silence, the state could not say "No, you can't do that"; if Hilliard were to decline such a moment of silence, the state cannot say "No, you must do that". Wallace v. Jaffree is the Supreme Court ruling on moments of silence, and it goes no further than to say that laws mandating a moment of silence, when enacted to further religion, violate the First Amendment. The Ohio law grants local choice, so it is not mandatory, and it does not further religion. Neither of these outcomes w.r.t. moment of silence follow from the First Amendment.

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    This seems like it answers a different question to the one I asked. I can easily believe there is an imperfect overlap between the rights guaranteed by the First Amendment and by the recent bill in Ohio, but that's incidental to what I'm asking. I'm trying to figure out whether, in the case of a law that actually only protects rights already guaranteed by the Constitution, the law has any effect (e.g. on the available remedies for violations of those rights). The only point here that addresses that question is the hypothetical scenario about the First Amendment being repealed or amended. – Mark Amery Nov 18 '19 at 16:37
  • (I felt like I did everything I could to be clear about this; I devoted most of my second paragraph just to stressing that point!) – Mark Amery Nov 18 '19 at 16:39
  • The problem is that your stipulation is not reasonable. We can only understand what things flow from the 1st Amendment by reading SCOTUS rulings. Law is an interconnected system: the initial supposition is wrong. – user6726 Nov 18 '19 at 16:51
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    That's why I specified that we should consider a hypothetical law that purports to protect rights that are already unambiguously established as protected by the Bill of Rights via existing rulings. I don't see what's "wrong" or "unreasonable" about that hypothetical; it seems to me like it's perfectly possible for such a law to be created. – Mark Amery Nov 18 '19 at 17:15
  • To be clear, only a select few individual rights are contained in the Constitution; it largely concerns itself with dividing and limiting the government’s power. Individual rights begin appearing front and center with the First Amendment. M – A.fm. Nov 18 '19 at 21:37

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