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Supreme Court Roundup: Justices Make Decisions Regarding Privacy and Public Safety; Religious Accommodation in Public Facilities.

To withdraw such a minimum expectation of privacy against unreasonable searches would permit "police technology to erode the privacy" guaranteed by the Constitution, Justice Antonin Scalia said.

Two Supreme Court decisions handed down last week could have an impact on some city operations. In a privacy and technology case, the high court struck down the use of a thermal imaging device by law enforcement without a search warrant. The other decision requires schools to allow religious groups to use their facilities like other organizations.

Thermal Imaging Search Decision

In an important declaration of constitutional constraints on local law enforcement using new privacy-threatening technology, the United States Supreme Court ruled that the use of a thermal imaging device to detect patterns of heat coming from a private home is a search that requires a search warrant.

The court's 5-4 ruling was a setback for the U.S. Justice Department, which argued the use of a thermal imager by law enforcement officers was not covered by constitutional privacy protections.

To withdraw such a minimum expectation of privacy against unreasonable searches would permit "police technology to erode the privacy" guaranteed by the Constitution, Justice Antonin Scalia said. Scalia rejected the Justice Department's argument that thermal imaging was constitutionally allowed because it did not detect intimate details.

Moreover, Scalia warned that a change in the court's approach would leave the homeowner at the mercy of advancing technology, including imaging technology that could discern all activity within the home.

The court said further that the warrant requirement would apply not only to the relatively crude device at issue but also to any "more sophisticated systems" in use or in development that let the police gain knowledge that in the past would have been impossible without a physical entry into the home.

The decision overturned a rifling by the United States Court of Appeals for the Ninth Circuit in San Francisco, which held in 1999 that the warrantless use of a device that revealed patterns of heat suggestive of an indoor marijuana-growing operation did not violate the Fourth Amendments prohibition of unreasonable searches.

In a dissenting opinion, Justice John Paul Stevens said the Ninth Circuit was correct and that the police activity in the case "did not invade any constitutionally protected interest in privacy."

Stevens said that for the court to make a constitutional rule about future technology was "unnecessary, unwise and inconsistent with the Fourth Amendment."

Stevens said the privacy interest was "trivial" at best. He said a homeowner who wants to engage in activities that produce extraordinary amounts of heat could conceal that from outsiders simply by making sure the home was well insulated.

Those who joined Justice Scalia in the majority were Justices David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer.

Chief Justice William H. Rehnquist joined Stevens in the dissent, as did Justices Sandra Day O'Connor and Anthony M. Kennedy.

Despite its forceful language, the decision was undoubtedly not the court's final word on the subject of privacy and technology. Justice Scalia's emphasis on the home raised the prospect that warrantless imaging of other locations might be upheld. And it is far from clear under the court's precedents whether a person in a home that belonged to someone else would have standing to challenge the use of an imager.

Further, the majority limited its holding to devices that are "not in general public use," without explaining that limitation. In his dissenting opinion, Justice Stevens said this limitation was "somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available."

The case is Kyllo v. United States.

Schools and Religious Organizations

The Supreme Court also ruled 6-3 that public schools may not keep religious organizations from meeting on school premises after hours, no matter how much proselytizing takes place.

The ruling appears to erase a line that several appeals courts had drawn between permissible clubs that discuss social issues from a religious perspective, and organizations that can be barred because they are "too religious" or overtly evangelical. For local governments, the ruling will make it difficult for them to prohibit the use of public facilities for any kind of religious purpose including worship services, which are already permitted in many communities. The ruling could stand for proposition that any public facility opened for civic proceedings must be opened for use as a church, synagogue or mosque.

The decision continues the court's recent trend of viewing student religious activities as a form of protected free expression rather than as an establishment of religion.

Using the language of free speech cases, the court said the Milford, N.Y., school district engaged in unconstitutional "viewpoint discrimination" when it barred the Good News Club from meeting after school in an elementary school cafeteria. The meetings were aimed at exposing children aged 6 through 12 to Christian Bible teachings. The decision in Good News Club v. Milford Central School is a symbolic win for religious groups that seek greater access to public spaces."

Some legal experts said the ruling would not significantly boost President George W. Bush's "charitable choice" program, which seeks to increase the participation of religious organizations in delivering public services.

"Financial aid cases and speech cases are still viewed differently by the court," said University of Texas law professor Douglas Laycock.

Justice Clarence Thomas was joined in the majority by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Stephen G. Breyer, who wrote a separate opinion to emphasize that he supported the club's position only insofar as it was asking for nondiscrimination by the school.

Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg dissented.

The case is Good News Club v. Milford Cent. School.
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Author:Otero, Juan
Publication:Nation's Cities Weekly
Article Type:Brief Article
Geographic Code:1USA
Date:Jun 18, 2001
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