Tag Archives: Religious Displays

State Religious Neutrality and the Point of Departure

Posted on June 11, 2013 by | 2 Comments

A quick followup on Claudia’s very interesting post on state religious neutrality. As Claudia suggests, pretty much every Western democracy nowadays accepts the notion that the state must be “neutral” with respect to religion. But, as Claudia points out, the fact that everyone uses the same word obscures underlying disagreements. In the US, for example, neutrality means that the state may not display sectarian symbols, at least in a manner that seems to endorse the sectarian message. Not so in Europe. There, the ECtHR has made plain, a state may display sectarian symbols as long as the state does not engage in active proselytizing. Thus, according to the recent Lautsi decision, European states may display crucifixes in public school classrooms, conduct that would be unthinkable in the US under current Supreme Court jurisprudence.

In trying to understand the different meanings the same word has in different systems, it’s useful to consider what Tocqueville referred to as a nation’s “point of departure.” Every legal system is embedded in a particular culture with a particular history. In Europe, where links between church and state are traditionally very strong, certain state actions, like placing sectarian symbols in the public space, are simply part of the background, something most people take for granted. In the US, however, a society with a much stronger separationist tradition, such actions are not seen as neutral and innocuous. I explain this all in more depth in a recent article on the Italian crucifix case, “Crosses and Culture: State-Sponsored Religious Displays in the US and Europe,” in the Oxford Journal of Law and Religion. Interested readers can find the article on the journal’s website, here.

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Posted in Commentary, Mark L. Movsesian

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Is Yoga Constitutional?

Posted on May 24, 2013 by | Leave a comment

Last month, I  wrote about a controversy surrounding the White House’s inclusion of a yoga garden in its annual Easter Egg Roll. The problem is this: yoga is a Hindu spiritual practice. Arguably, therefore, state-sponsored yoga is a religious endorsement that violates the Establishment Clause under existing Supreme Court case law.

Yoga Class at Encinitas School (New York Times)

It turns out that very issue is being litigated this week in a California  court. The Encinitas Union School District has introduced yoga as part of the phys ed program in elementary schools. Some parents object that the program highlights yoga’s spiritual elements and amounts to religious indoctrination. The school argues that it has eliminated religious references and that what remains is nothing more than an enriched gym class. An Indiana University religious studies professor who testified at trial demurs. She says that that it would be odd, from a Hindu perspective, to separate yoga’s physical and spiritual elements.

Under Supreme Court precedent, government can separate “cultural” from “religious” messages and promote the former. That’s why official Christmas displays with reindeer and elves survive constitutional scrutiny, but not solo nativity scenes. The logic is that the secular decorations swamp the religious message and ensure that passersby don’t think the government is endorsing Christianity, as opposed to Christianity’s cultural accretions.

This logic has saved some Christmas displays, but offended some Christians. To them, the Supreme Court’s reasoning suggests an unfortunate hostility to their religion: Christmas is acceptable in the public square only if its spiritual associations are diluted. To be sure, the Supreme Court  has said only that official displays must avoid religious associations, but people rarely compartmentalize things so logically. Culture often follows law.

So here’s a question: if official yoga programs are allowed on the theory that they have been scrubbed of religious associations, will pious Hindus object?Will people start demanding to keep the yoga  in yoga?

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Posted in Commentary, Mark L. Movsesian

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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 Scholarship Roundup, Andrew R. Hamilton

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A Bunny is a Bunny

Posted on March 28, 2013 by | 7 Comments

I guess it was bound to happen. A public elementary school in Alabama has renamed its annual Easter Egg Hunt to avoid giving offense to non-Christian children and parents. According to the school’s principal, Lydia Davenport, the hunt will still take place; it will just no longer have the word “Easter” attached to it. The seasonal rabbit will likewise go nameless:

“Kids love the bunny,” smiles Davenport, “and we just make sure we don’t say ‘the Easter bunny’ so that we don’t infringe on the rights of others because people relate the Easter bunny to religion; a bunny is a bunny and a rabbit is a rabbit,” Davenport concluded.

Well, you can’t argue with that. Most disputes about public holiday displays in America involve Christmas, of course. This is so, I think, because Easter, although far more important as a religious holiday, is relatively minor as a public holiday. Perhaps that’s because it falls on a Sunday. Compared to Christmas, Easter passes by almost without notice in America. But there’s no reason we can’t fight over it as well. Let the Easter Wars begin.

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Posted in Commentary, Mark L. Movsesian

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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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10 Commandments Judge to Return to Alabama Supreme Court

Posted on November 9, 2012 by | Leave a comment

The Mojave Desert cross is not the only Establishment Clause icon to make a comeback this week. Roy Moore, the former Chief Judge of the Alabama Supreme Court, who famously defied a federal court order to remove a Ten Commandments monument from the state courthouse, has won election to his old job. In 2003, a state judicial ethics panel removed Moore from office for failing to comply with the federal court order. This week, the voters of Alabama sent Moore back to his former position. Moore told his supporters that he would continue “to stand for the acknowledgment of God,” but has promised not to try to restore the monument.

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Posted in Commentary, Mark L. Movsesian

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Federal Court Denies Preliminary Injunction Against County Legislative Prayer

Posted on September 2, 2012 by | Leave a comment

Another skirmish in the legal contests about the constitutionality of legislative prayer — this time in a thoughtful district court decision.  The plaintiff sued a local Tennessee County to stop it from beginning its regular meetings with a prayer.  The stipulated facts indicated that prayers were given by members of various faiths through the years, but that “[s]ome of the invocations ‘referred to a deity in a way consistent with the Christian faith.’”  Most recently, the Lord’s Prayer was recited, and several commissioners “stood and joined in the spoken recitation of the prayer.”  After these incidents, the County adopted a policy indicating that its list of invocation-givers is drawn from a variety of religious traditions and is entirely voluntary, and that legislative prayer has been held by the Supreme Court in Marsh v. Chambers to be constitutional.  The Freedom From Religion Foundation nevertheless sued, seeking a preliminary injunction to stop the County from conducting the prayers pursuant to the policy and alleging a violation of the Establishment Clause.

The United States District Court for the Eastern District of Tennessee denied the preliminary injunction.  After remarking on the extremely murky status of the Lemon Test (and I loved this quote from a Sixth Circuit opinion: “[W]e remain in Establishment Clause purgatory.”), the court held that in the specific context of legislative prayer, the Lemon Test “simply does not apply.”  Instead, Marsh v. Chambers is the standard, in which the Supreme Court engaged in a historical examination of the practice of legislative prayer, concluding that it is ”deeply embedded in the history and tradition of the country.”  The court quoted this specific language from Marsh:

Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination—Presbyterian—has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo–Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice. 

The court recognized that Marsh’s holding had been qualified in City of Allegheny v. ACLU (a religious display case, not a legislative prayer case), where the Supreme Court had some limiting things to say about the force of history and tradition.  But the Sixth Circuit has not (yet) decided a case specifically about the constitutionality of legislative prayer.

In light of the holding and dicta in Marsh, as well as the recent legislative prayer decisions in the Second Circuit (discussed here), Fourth Circuit (particularly Joyner v. Forsyth County), and the Eleventh Circuit (Pelphrey v. Cobb County), the court distilled several broad “themes” relating to the constitutionality of legislative prayer:

  1. “[L]egislative prayer has a unique and well-established history that, relative to the First Amendment, renders it unlike other types of government conduct. It presents a sui generis legal question[.]“
  2. “I]n large measure due to the unique historical place it occupies, legislative prayer is, in general, permissible . . . . Legislatures may call upon—or even employ—ordained ministers to invoke divine guidance on a group of elected officials . . . . [T]o the extent a clear message can be heard from Marsh, it is this: as a basic legal principle, the Establishment Clause is not offended if a legislature formally invokes divine blessings on its official business.
  3. “[D]espite its marked differences from other governmental involvement with the sacred, a legislature’s ability to call on the divine at public meetings is not limitless. Historical patterns, standing alone, cannot justify violations of constitutional guarantees, and the government may not express its allegiance to a particular sect or creed . . . . It is for that reason that the prayer opportunity cannot be used to proselytize listeners . . . . Likewise, such prayer practices may not be used to advance any one belief or to disparage any other . . . . Even when operating under a facially neutral policy, a legislature may not select invocational speakers based on impermissible motives or sectarian preferences.” 

Applying these themes, the court held that the County’s policy did not, on its face, violate the Establishment Clause.  The policy specifically states that it is not intended to proselytize or to promote any particular religion.  It is inclusive in its scope, extending to all religious congregations with an established presence in the County and open to all that wished to be included.  The court rejected as speculative and “unripe” FFRF’s allegation that the Policy is “a sham” and that, when applied, it will certainly be unconstitutional.  Neither, however, does the County’s policy insulate it from further review down the road.

The case is Jones v. Hamilton County, 2012 WL 3763963 (E.D. Tenn. Aug. 29, 2012).

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Posted in Commentary, Marc O. DeGirolami

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Eleventh Circuit Remands Ten Commandmants Case on Standing Grounds

Posted on August 16, 2012 by | Leave a comment

The U.S. Court of Appeals for the Eleventh Circuit has remanded a case to the district court involving a 5-foot-tall monument of the Ten Commandments which sits beside an entrance to the Dixie County Courthouse in Florida.  The plaintiff, a North Carolina resident who was considering whether to purchase property in the County, made his way to the Courthouse and saw the monument.  As the Eleventh Circuit put it, ”the experience of seeing the statue was a negative one” (though after the shock had passed, he was able to recover and proceed with his business).

The plaintiff never did purchase any land in the County, but the ACLU used him in an attempt to get itself standing to sue the County for violating the Establishment Clause.  Standing demands a concrete injury.  When deposed, the plaintiff indicated that the reason he did not purchase property in the County was due to “the display of the monument” and because “I found other things I was offended by.”  A later affidavit by the plaintiff indicates instead that the monument was the but-for cause of his decision not to purchase property.  The district court denied a motion for summary judgment by the County on the issue of standing, and granted the ACLU’s motion for summary judgment on the merits.

For the Eleventh Circuit, the issue seems to be whether the plaintiff had standing to sue, and the remand has to do with an evidentiary question about the reasons for the plaintiff’s decision not to purchase property in the County.  The initial deposition and later affidavit seem to be in some tension (the Court called the affidavit “suspect, given that it seems designed to strengthen [plaintiff's] standing claim”).  By granting the ACLU’s summary judgment motion, the district court improperly resolved a disputed factual question.

Judge Edmonson filed a separate opinion concurring in part and dissenting in part, arguing that the case should be dismissed now because plaintiff has failed to meet the standing requirement.  He would have relied on the “clear and unambiguous answers” in the deposition, not the later prepared affidavit, to dismiss the case.  Judge Edmonson notes that the “other things” that offended the plaintiff (as stated in the deposition) included: (1) a cartoon in the County assessor’s office depicting an American soldier telling a French official “Well, you didn’t make me show a Visa when I landed in Normandy”; (2) a writing in the assessor’s office that said something like “the only two who gave blood for you or gave their souls for you were Jesus and the veterans”; and (3) a website that included the words “Patriot Properties” and “Dixie” in its web address, which an employee in the assessor’s office recommended that plaintiff visit if he had more questions.  Plaintiff also stated that he was discomfited by the fact that the locals were “a bit cold.”

The case is ACLU of Florida, Inc. v. Dixie County, Florida (August 15, 2012).

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Posted in Commentary, Marc O. DeGirolami

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Sixth Circuit: County’s Denial of Permit for Creche Violates Free Speech Clause

Posted on August 2, 2012 by | Leave a comment

Another skirmish in the Christmas Wars: the Sixth Circuit has decided that a county’s denial of a permit to erect a creche on public property violated the Free Speech Clause. For decades, a family in Macomb County, Michigan, had erected a Christmas creche on a roadway median.  In 2008, the Freedom From Religion Foundation told the county that the creche violated the Establishment Clause and asked that it be removed; after consulting counsel, the county revoked the permit. The family then sued the county, arguing, among other things, that the county had violated the family’s free speech rights. Yesterday, the Sixth Circuit agreed. In a unanimous decision by Judge Boggs, the panel held that the median was a traditional public forum and that the county had not shown a compelling interest in rejecting the creche. Although the government argued that safety concerns justified its decision, the court dismissed this as a litigation strategy. The real reason the county had rejected the creche, the court said, was to avoid a perceived Establishment Clause violation. But, notwithstanding the legal advice the county had received,  the creche did not violate the Establishment Clause. The creche, the court explained, was only one of a number of privately-sponsored displays in a public forum, and thus constitutionally unobjectionable. The case is Satawa v. Macomb County Road Commission, 2012 WL 3104511 (6th Cir., Aug. 1, 2012).

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Posted in Commentary, Mark L. Movsesian

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Get That Cross Off the City Seal

Posted on July 28, 2012 by | Leave a comment

Once again, we’ve hit the silly season for objections to religious symbols. This week, in response to a threatened lawsuit by the Freedom from Religion Foundation, the city of Steubenville, Ohio, decided to revise its official seal (left) to remove the silhouette of a local landmark, the chapel on the campus of Franciscan University. You see it? Take your time, it’s over there on the right. The problem was the cross on top of the chapel. According to FFRF, its depiction amounted to an establishment of religion under current Supreme Court case law, which forbids government from endorsing religion. Someone suggested depicting the chapel without the cross, but FFRF apparently objected to that, too. So, rather than face an expensive lawsuit it figured it would lose, the city caved and restored an older version of the seal (below). The old seal avoids endorsing religion, though it does seem to endorse wooden forts.

I’m not sure the city was correct in estimating its chances. True, many lower courts have ordered the removal of crosses from city seals under the endorsement test, but the cases are very fact specific. The key question is whether a reasonable observer would see an official endorsement of Christianity, rather than a reflection of a community’s history. For example, the Tenth Circuit held a few years ago that the city of Las Cruces, New Mexico, could retain crosses on its seal in light of the Continue reading →

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Posted in Commentary, Mark L. Movsesian, Uncategorized

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