Tag Archives: Establishment Clause

NYC Council Passes Equal Access Resolution for Churches to School Property

Posted on May 24, 2013 by | Leave a comment

Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). We have on various occasions discussed the “serpentine path” of litigation in the Bronx Household of Faith case, and it appears from Mead’s report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be “appearing to endorse religion.” The Council’s resolution may have been spurred by the events in the Southern District of New York.

I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the “appearance” of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually does violate the Establishment Clause. Here, though, I only want to note that Mead’s view that “the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties” is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one’s views, that is not necessarily conclusive on the question whether the Constitution forbids such use today.

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Posted in Commentary, Marc O. DeGirolami

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Certiorari Granted in Legislative Prayer Case

Posted on May 20, 2013 by | 1 Comment

The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of New York in which the Second Circuit held in an opinion by Judge Guido Calabresi that the town’s practice of allowing volunteer private citizens to open town board meetings with a prayer violated the Establishment Clause. The last Supreme Court decision to address this precise issue was Marsh v. Chambers (1983), where the Court in a majority decision by Chief Justice Burger upheld the particular practice at issue in Nebraska. Courts of appeals have taken different approaches to the issue post-Marsh, even within the same circuit (see, e.g., the Fourth Circuit’s very different approaches in Joyner v. Forsyth County, Wynne v. Town of Great Falls, and Simpson v. Chesterfield County) so I suppose it was on the Court’s radar. But one never knows exactly why the Court decides to take up an issue.

For some discussion of the Second Circuit decision, see this post.

UPDATE: Interesting early posts on the case by Eugene Volokh and Paul Horwitz.

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Posted in Commentary, Marc O. DeGirolami

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National Day of Prayer

Posted on May 2, 2013 by | 1 Comment

You might not have noticed it, but today is the National Day of Prayer. I should say, a National Day of Prayer, as that’s what the US Code calls it. Every year, by law, the President issues a proclamation “designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, or as individuals.” President Obama’s proclamation this year is rather moving. It stresses the comfort that Americans draw, in times of suffering, from the simple fact that other Americans are praying for them:

Prayer brings communities together and can be a wellspring of strength and support. In the aftermath of senseless acts of violence, the prayers of countless Americans signal to grieving families and a suffering community that they are not alone. Their pain is a shared pain, and their hope a shared hope. Regardless of religion or creed, Americans reflect on the sacredness of life and express their sympathy for the wounded, offering comfort and holding up a light in an hour of darkness.

The proclamation itself ends with a prayer: “I join the citizens of our Nation in giving thanks, in accordance with our own faiths and consciences, for our many freedoms and blessings, and in asking for God’s continued guidance, mercy, and protection.”

The day is not without its critics. The Freedom from Religion Foundation once filed a lawsuit, dismissed on standing grounds, arguing that a National Day of Prayer violates the Constitution, and the American Humanist Association hosts a competing National Day of Reason every year. (You might not have noticed that, either.) Orthodox theists of various sorts might find the day objectionable as well. To whom or what are Americans being invited to pray? Doesn’t officially-encouraged prayer to a nondescript deity lead to confusion and least-common-denominator religion? Not everyone finds generic prayers so harmless.

I’m not sure what the answer is, except to say that designating a National Day of Prayer seems entirely American. Public religious references of a nonsectarian character have long been a part of the American tradition, for better or worse, and there’s no stopping them now. The wisdom of our ancestors is in such things, as Dickens once observed in another context, and if we disturb them, the Country’s done for. Purists, of the secular and orthodox variety, have to adjust.

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Posted in Commentary, Mark L. Movsesian

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Marriage Privatization Won’t Be Easy

Posted on April 17, 2013 by | 2 Comments

Several years ago I wrote a “Judeo-Christian” defense of marriage privatization, by which I mean getting the government out of the business of deciding what marriage is and by what terms it should be governed.  As the cultural wars over same-sex marriage intensify, that idea has gained wide popularity across the political spectrum.  For example, in their popular book Nudge, Richard Thaler and Cass Sunstein devote an entire chapter to advocating marriage privatization.

Many advocates of marriage privatization seem to think that disentangling the state from marriage would be easy.  They argue that the government should just stop issuing marriage licenses.  Marriage would then become a private ceremonial and contractual matter.  The state would enforce marriage contracts just like other contracts.

Although I remain an advocate of marriage privatization, disentanglement would be far from that easy.  The state is thoroughly intertwined with marriage; the Gordian knot cannot be neatly severed.  I’m currently working on article entitled How to Privatize Marriage that tries to work through these complex issues.  My bottom line is that privatizing marriage does not mean that the state would get out of regulating and recognizing intimate unions altogether, but that it would try to create a wider space for regulation and recognition by individuals and social and religious groups.

I’m still working through these issues and won’t try to offer a comprehensive solution yet.  For now, I’d  like to raise three difficulties with marriage privatization that need to be addressed as part of any privatization proposal.  They correspond to functions currently served by state marriage regulation and recognition.

First, the state uses marriage as a marker for the dispensation of state benefits and the extraction of obligations owed to the state by individuals.  This is most obvious in the taxation context, but occurs across a tremendous range of state activities. (I’m using “state” in its broad sense to include all governments).   For example, selective service (i.e., the draft) has typically differentiated between the married and unmarried.  The rules of evidence create “marital privilege” allowing spouses not to testify against each other.  If the government were to stop issuing marriage licenses, it would need to account for the thousands of ways in which laws draw distinctions based on marital status.  If marriage were a purely private creation—anyone could call themselves married according to whatever criteria they chose—these thousands of legal categorizations would collapse.

Second, the state has traditionally regulated marriage to prevent certain kinds of abuses.  For example, prenuptial agreements are not enforced as routine contracts because of the potential for unfairness and imposition by the strong on the weak.  The easy “pro-privatization” answer is that civil courts would continue to enforce marriage contracts only if they were fair.  But what if the married couple had agreed, for example, to be bound by principles of Christian marriage and to have any disputes within their marriage resolved through a process of conciliation, mediation, and arbitration within the Catholic Church?  Nominally, a civil court’s job would be to enforce any arbitration award coming out of the Catholic Church, as courts currently do under the Federal Arbitration Act.  But now imagine the entanglement problems when, for example, the wife challenged the arbitration award as unconscionable or against public policy because the arbitrators had discriminated against her because she was a woman or had left the Catholic Church or wanted to use birth control or had come out as a lesbian or any number of other potentially objectionable reasons.  Having civil courts scrutinize religious arbitral decisions for fairness and conformity with public values raises severe establishment clause and free exercise problems.  And having courts simply rubberstamp such arbitration awards means that the state would have to abdicate its traditional function in preventing various kinds of abuse and unfairness within marital relations.  Just to raise everyone’s hackles, imagine the proceedings to enforce a Sharia divorce judgment in a family court in San Francisco.

Finally, state recognition of marriage plays an important role in facilitating market transactions between private parties.  For example, car rental companies typically allow a married renter to add  his or her spouse as a driver at no additional charge.  Insurance companies set premiums for all kinds of policies based on marital status.  And there are many other examples.  In certifying who is married, the state performs a function that markets value, much as the USDA does as to various kinds of food certifications.  This is not to say that private organizations couldn’t replace the state’s certification role, but, to play law and economics for a moment, that might greatly increase various kinds of transaction costs.  This last point is one that I don’t think has been widely appreciated, but is quite substantial.

I believe that there are answers, which is why I remain an enthusiastic marriage privatization proponent.  But privatization advocates need to start engaging more systematically with these thorny problems.

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Posted in Daniel Crane

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Does Yoga Violate the Establishment Clause?

Posted on April 16, 2013 by | Leave a comment

Here’s another item in the occasional series, “Does it violate the Establishment Ganesh with cupcakeClause?” whose last entry concerned werewolves and crusaders.  Given the state of Establishment Clause doctrine on this particular set of issues, I’m confident that I’ll be getting lots of material for it.

This story reports that the President (or those close to him, or something) really goes in for yoga, and so the President’s Council on Fitness, Sports, and Nutrition is making a pro-yoga pitch, which included the introduction of a yoga garden during this year’s Easter Egg Hunt where one could receive yoga pedagogy.

But there is a problem.  Some believe that the official state promotion of yoga–in public school, for example–violates the Establishment Clause because it is tantamount to the government “picking religious winners and losers.”  The story reports:

[The lawyer representing objecting families] said many Americans who practice yoga want to be viewed as spiritual but not religious. However, claims that yoga is a mere physical exercise that doesn’t cross the line to Eastern religious beliefs and practices are dubious at best . . . . [Y]oga poses are worshipful acknowledgements of Hindu deities and have been shown to have a religiously transformative impact.

“Let’s be honest, if the White House was actively promoting a Christian-based exercise program, I am confident there would be a huge public outcry and they would change the program. But because yoga is based in Eastern mysticism, which is not well understood, many tend to try to disingenuously downplay its religious aspects[.]”

It’s hard to argue with the government’s response: whatever your religious beliefs, everybody benefits from “stretching, strength-building, and breathing.”  But the best line belongs to the judge assigned to hear the case, who is himself a devout yoga practitioner (or is that yogi?).  When questioned about his yoga activities, he is said to have responded: “Does anybody have a problem with that? . . . .If you think there’s something spiritual about what I do, that’s news to me.”

Easter Egg Hunt, take note.

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Posted in Commentary, Marc O. DeGirolami

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Astoria on The Endorsement Test and Equal Status

Posted on April 15, 2013 by | Leave a comment

Ross Astoria (U. of Wisconsin, Parkside) has posted The Endorsement Test and Equal Status. The abstract follows.

Since its inception, jurists and legal scholars have hotly contested the utility and fairness of the endorsement test. For its detractors, the endorsement test is unanchored in the constitutional text, devoid of limitations on the exercise of judicial power, and accordingly produces misguided outcomes. In contrast, its remaining adherents think the endorsement test expresses the basic democratic value of equality, and therefore find it worthy of preservation.

This paper is an attempt to reinvigorate the endorsement test
by more concisely articulating the relationship between endorsing and equality. As the endorsement test is presently conceived and employed, however, this relationship is oblique at best. In order to foreground equality, then, the endorsement test requires significant modification, which I propose in Section III. The primary purpose of these modifications is to assign to the norm of equal status the central role in Establishment Clause jurisprudence, particularly in those cases conventionally dubbed “display cases.” As far as I can tell, this is a new approach to religion clause jurisprudence. To test the modified endorsement test, I tease out its implications by applying it to several cases and scenarios.

In what follows, I first introduce the norm of equal status by
comparing it with other norms which religion clause theorists often take as salient (Sec. II). I then introduce the modification to the endorsement test, showing in the process how the endorsement test, as presently conceived, fails to foreground the norm of equal status (Sec. III). Finally, I apply the modified endorsement test to several common display case scenarios (Sec. IV). In the conclusion, I say a few things about the superiority of the modified endorsement test (Sec. V).

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Posted in Andrew R. Hamilton, Scholarship Roundup

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The Becket Fund’s Cert Petition in the Wisconsin High School Graduation Case

Posted on April 7, 2013 by | Leave a comment

Last summer, the Seventh Circuit ruled, en banc, that a Wisconsin public high school could not hold its graduation ceremonies in a rented Evangelical church sanctuary. To do so, the court ruled, posed too great a risk of government coercion, proselytism, and endorsement of religion. Three judges–Easterbrook, Posner, and Ripple–filed blistering dissents, the sort that often result in Supreme Court review.

The Becket Fund has filed a cert petition on behalf of the high school; Stanford Law Professor Michael McConnell appears on the petition as counsel of record. You can read the petition here. The Supreme Court is expected to announce whether it will hear the case, Doe v. Elmbrook School District, later this month. The case would give the Court an opportunity to clarify (or discard) its much maligned endorsement test. For my reflections on the issues the case raises, please click here.

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Posted in Commentary, Mark L. Movsesian

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District Court Rejects September 11 Cross Challenge

Posted on March 31, 2013 by | Leave a comment

In my book, The Tragedy of Religious Freedom, I have a chapter that tells “A Tale of Four Crosses” in an effort to flesh out my approach to questions of religious liberty, and specifically government display of religious symbols.  One cross in the tale is the September 11 cross–a collection of beams which fused together amid the debris of the tragedy and was discovered by a rescue worker.  The cross provided inspiration, solace, and hope to many people who were grieving at the time.  After various developments, the state decided to display the cross in a museum about the events on that day, but this was opposed by American Atheists, Inc.  I conclude in that chapter that, applying my method (and not the Supreme Court’s tests), display of the cross in a state museum is almost certainly constitutional.

Applying the Supreme Court’s tests, the United States District Court for the Southern District of New York agreed.  In an opinion issued March 28, the court granted the defendants’ motion for summary judgment in a case brought by American Atheists, Inc., which challenged the constitutionality of displaying the September 11 cross in a state museum.  The Port Authority donated the cross to the National September 11 Memorial and Museum at the World Trade Center Memorial Foundation, Inc.  The Foundation attempted to display the cross in the museum, but American Atheists sued to block this from happening on Establishment Clause grounds.

That claim was rejected by the district court (Batts, J.).  After finding that the activities of the Foundation constitute state action, the court laid out the Establishment Clause standard in Lemon v. Kurtzman and the Supreme Court’s subsequently elaborated “endorsement” test.  The parties agreed that display of the cross satisfied Lemon’s requirement of “secular purpose,” inasmuch as the reason for its display was “historical and secular.”  As to secular “effect” (which generally is the same as perceived “endorsement” in this context), the court said this–and note in particular the permissibility of “acknowledgment” on the part of the state:

[S]ince the cross is housed in the Museum, its inclusion–in the September 11 Museum context with placards to explain why it was included in the Historical Exhibit–does not advance or endorse religion.

Plaintiffs assert that because the cross was used during Christian religious ceremonies, it is unlike historic religious objects that are housed in museums.  They, however, cite no case law making such a distinction.  Rather, the fact that the artifact is housed in the Historical Exhibit helps to negate any “sacred message” even though it “undeniably has a religious message.” . . . . Also helping to negate any potential endorsement is the fact that the explanatory placards will accompany the artifact . . . . Moreover, the acknowledgement that many rescuers and volunteers found [solace] in the cross is not an endorsement of their religion . . . .

Plaintiffs also argue that because the artifact is seventeen feet tall, its size signals endorsement because no other artifact is as large as the cross . . . . Although the size of the item may be a factor in determining whether government endorsement exists, here, the cross is seventeen feet tall because that was the artifact’s size when it was found.

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Posted in Commentary, Marc O. DeGirolami

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Enforcing the “Jewish Prenup”

Posted on March 29, 2013 by | Leave a comment

Thanks to Mark for the invitation back to the CLR Forum for a guest post.  Yesterday, a couple of law blogs (see here and here) picked up a story in the Jewish Daily Forward about an important Connecticut state court decision that enforced what is often referred to as the “Jewish Prenup” (“In Victory for ‘Chained’ Wives, Court Upholds Orthodox Prenuptial Agreement“).  I’ve written a bit about the decision previously, but wanted to explain a little bit more about what is at stake.  [UPDATE: Here's a copy of the decision Light v. Light reprinted from Westlaw with permission of Thomson Reuters.  If you wish to check the currency of this case by using KeyCite on Westlaw, then you may do so by visiting www.westlaw.com.”]

Under Jewish law, only a husband can initiate a Jewish divorce.  Moreover, if a husband is “coerced” into granting a divorce, then the divorce is considered invalid.  This combination of rules has caused some significant problems for Orthodox Jewish women seeking to end their marriage where their husband refuses to grant them a Jewish divorce document.  In order to address this growing problem, a number of Jewish organizations – most prominently, the Beth Din of America – created a prenuptial agreement, which is now signed by a growing number of Orthodox Jewish couples.  This agreement’s most salient feature is a provision where the husband agrees to provide his wife with financial support in the amount of $150 per day “so long as the two . . . remain married according to Jewish law.”  The purpose of this provision is to walk a fine line between placing financial pressure on the husband to ensure he grants the divorce without placing so much pressure so as to render any subsequent divorce granted by the husband “coerced” (for a recent article exploring various considerations on this and related points, see here starting on page 12).

It was this support provision that was enforced by the Connecticut Superior Court in its recent decision in the case of Light v. Light.  In so doing, the court considered the husband’s claim that enforcing the prenuptial agreement would violate the First Amendment by requiring the court to “consider[] religious doctrines and ceremonies.”  However, the court rejected this argument, holding that the prenuptial agreement could be interpreted and enforced in accordance with “neutral principles of law”:

In the present case, a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.

It is important to note here that the prenuptial agreement does not require the husband to grant his wife a Jewish divorce.  Indeed, courts have differed as to whether a contract in which a husband agrees to grant his wife a religious divorce is enforceable; the issue raised in such cases is whether or not civil enforcement of a contract that requires a husband to grant a religious divorce violates the religion clauses of the First Amendment (for contrasting views, see here and here).  By contrast, the prenuptial agreement simply requires the husband to make support payments, thereby avoiding these potential First Amendment problems.

This decision – which is in my view both correctly decided and well reasoned – is likely to have significant impact on any future cases involving this increasingly popular prenuptial agreement.  The “Jewish prenup” has done an impressive job of avoiding a variety of both constitutional objections and Jewish Law conundrums.  And as a result, this prenuptial agreement is likely to go quite far in protecting Orthodox Jewish women by providing them with the financial leverage necessary to ensure that they receive their religious divorces from otherwise reluctant husbands.

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Posted in CLR Forum Guest, Michael A. Helfand, Uncategorized

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Sixth Circuit Dismisses Anti-Religion Sign Suit

Posted on February 26, 2013 by | 2 Comments

In a very interesting opinion, Freedom From Religion Foundation v. City of Warren, the Sixth Circuit ruled yesterday that the City of Warren, Michigan, could retain its yearly holiday display (which includes “a range of secular and religious symbols–a lighted tree, reindeer, snowmen, a ‘Winter Welcome’ sign and a nativity scene), located in the atrium of its civic center between Thanksgiving and New Year’s, without also being compelled to display the following:

At this season of
THE WINTER SOLSTICE
may reason prevail.
There are no gods,
no devils, no angels,
No heaven or hell.
There is only our natural world,
Religion is but
Myth and superstition
That hardens hearts
And enslaves minds.

Placed by the Freedom From Religion Foundation
On Behalf of its State Members
ffrf.org

State/Church
KEEP THEM SEPARATE
Freedom From Religion Foundation
ffrf.org

In his opinion for a unanimous panel, Judge Sutton held that (1) the display does not violate the Establishment Clause because the nativity scene is accompanied by other secular and seasonal symbols; and (2) the display is “government speech” and therefore does not violate the Freedom From Religion Foundation’s free speech rights by refusing to add its anti-religion sign.

Judge Sutton carefully grounded the court’s Establishment Clause holding in the Supreme Court’s holiday display cases–Lynch v. Donnelly and County of Allegheny v. ACLU: “If the multi-purpose, multi-symbol Pawtucket and Allegheny County displays did not offend the Establishment Clause, then neither does the Warren display. The Warren exhibit parallels the Pawtucket one and is less faith-centered than the permitted Allegheny County exhibit.”  He rejected FFRF’s claim that the city’s refusal to display the anti-religion sign demonstrated  a “lack of neutrality between the secular and the religious.” He argued that all of the symbols in the display but one were secular, offering the following interesting discussion:

Some of these symbols allegedly are rooted in pagan traditions . . . . Some are connected to the winter season.  And some embody the most commercial features of the holiday season.  But none of these secular symbols has roots in any one faith or in faith in general.  Look through the Old and New Testaments, even we suspect in their original languages, and you will not find any references to these symbols. It may be true that many of these symbols have become connected to European and American celebrations of Christmas over time, some through the happenstance of the time of year at which the holiday falls (at least in the western part of the Northern Hemisphere) and some through stories written and read over the years. But that did not suffice to invalidate the equivalent display in Lynch; it does not suffice here.

The composition of displays used to commemorate holidays and seasons, moreover, is not static. The breadth of symbols included in the Warren exhibit reflects not just the demands of the Establishment Clause but also the demands of democracy in an increasingly pluralistic country. That presumably is why some cities no longer have such displays, why others have made a point of featuring symbols connected to other faiths (Warren had a Ramadan sign one year) and why a city like Warren would include words conspicuously ungrounded in any faith (“Winter Welcome”). Even the most faith-inspired phrases have taken on secular connotations over time. When one neighbor greets another in mid-December with “Happy Holidays,” it is the rare person who hears “Happy Holy Days.” See Webster’s New International Dictionary 1188 (2d ed. 1950).  What was once the most religious of invocations has become one of the most faith neutral, even secular. One indeed can fairly wonder who has co-opted whom over time with these displays and words. But that is a matter for another day. The key lesson of Lynch and Allegheny County is that a city does not run afoul of the Establishment Clause by including a creche in a holiday display that contains secular and religious symbols.  Warren readily meets that test.

Judge Sutton also rejected FFRF’s claim that certain isolated remarks in a letter written by the Mayor of Warren was proof of the City’s non-neutrality.  And then he said this about a strict separationist approach to the Establishment Clause:

A strict separationist perspective might suggest that the Mayor got carried away when he said that “our country was founded upon basic religious beliefs” and added a few other like-minded sentiments. Id. But the Establishment Clause does not demand strict separation between church and state in governmental words and deeds, even if that were somehow possible. The Mayor indeed could have been more forceful on the point and quoted the Supreme Court in the process: “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). If the Court may say this about American government and if Congress may enact a law devoted to spiritual matters and called the Religious Freedom Restoration Act, all without violating the Establishment Clause, see Wilkinson v. Cutter, 544 U.S. 709, 712–14 (2005), surely the Clause does not stand in the way of the City’s winter solstice-free display and the Mayor’s explanation for it.

It may be true that the Mayor misapprehended the Religion Clauses when he implied that atheists receive no protection from them by saying that the Foundation’s “non-religion” was “not a recognized religion.” In this respect, the Mayor, apparently untrained as a lawyer, may not have missed his calling. The Religion Clauses, it turns out, do protect the religious and nonreligious. Wallace v. Jaffree, 472 U.S. 38, 52–54 (1985). But this defense of his actions, premised on a misreading of precedent, does not transform his actions or the City’s display into an establishment.

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Posted in Commentary, Marc O. DeGirolami

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