Tag Archives: Establishment Clause

The Ten Commandments in the Courthouse

Recently, I visited the New York State Courthouse here in Jamaica, Queens. For readers who don’t know, Queens is one of New York City’s outer boroughs. It is the most ethnically diverse county in the United States, perhaps the most ethnically diverse place in the entire world. About half its population of 2.3 million is foreign born. More than half speak a language other than English at home. About 40% of its residents are white; Asians and African-Americans each make up about a fifth of the population; Latinos a bit more. Statistics on religious affiliation are harder to come by, but apparently about half of the borough’s residents are Christians; of them, Catholics make up the largest percentage, about one-third of the total population. As to the other 50%, Queens has significant numbers of Jews, Muslims, Hindus, Sikhs, Buddhists, and people without formal religious affiliation—the Nones. In terms of religious and cultural variety, Queens has it all.

Given the ethnic and religious diversity of Queens, a work of art I saw in the Queens courthouse surprised me. Decorating the building’s central, ceremonial staircase are a pair of two large WPA-style murals, executed when the courthouse was built during the Great Depression. They make up a unified work. The one on the left, titled “Mosaic Law” (above) shows a crowd of Hebrews surrounding Moses as he descends from Mt. Sinai with the tablets containing the Ten Commandments, written in Hebrew script. The one on the right, titled “Constitutional Law” (below) shows a crowd of historical figures—Washington, the Framers, and Chief Justices from John Jay to Charles Evans Hughes—gathered around a stone plaque with the words of the Preamble: “We the People.”

In one sense, of course, the murals should not have surprised me. Displaying the Ten Commandments in courthouses is an American tradition. It has become an extremely controversial one, however. Litigants have brought numerous constitutional challenges in the last few decades. Courts have reached different conclusions, based largely on the facts of specific cases. About 10 years ago, the US Supreme Court ruled that the display of the Ten Commandments in one Kentucky courthouse violated the Establishment Clause under the so-called “endorsement test.” A reasonable observer, the Court held, would perceive the display as an impermissible, official endorsement of religion. Such an endorsement would send a message of exclusion to non-adherents and make them feel like outsiders in their own community—like disfavored, second-class citizens.

I stood on the staircase for a while and watched people go up and down. Aside from me, no one seemed to notice the murals at all. And I wondered, how could it be, in a place as religiously diverse as Queens, that no one had objected? How could it be that no one had claimed that the murals made him feel like an outsider, a second-class citizen? With thousands of people from different religious backgrounds passing by these murals every day, surely someone would have taken offense and brought a lawsuit. Were people too polite or intimidated to complain? That hardly seems possible, not in Queens. And if someone did bring a constitutional challenge, wouldn’t it have a good chance to succeed? What explains the quietude—the dog that doesn’t bark?

It seems to me there are two explanations. First, it’s quite possible that people in Queens, even the many people from religious traditions other than Christianity, Judaism, and Islam—all of which venerate the Ten Commandments—do not find the display at all offensive. They likely accept it as the tradition of the society in which they have chosen to live. Many of them have immigrated here at great personal cost and are not put off by American customs. Peter Berger and others have written about this phenomenon in the European context. Although European elites often argue that religious minorities find public Christian displays insulting, he explains, little evidence exists that the minorities themselves actually feel offended. Berger describes this misguided, or pretextual, solicitude for religious minorities as the “‘battering ram’ approach to policy making: secular elites make use of other faith communities in order to further their own—frequently secular—points of view.”

Of course, there are plenty of secular elites in New York City, and many of them are lawyers. So why has no one brought a lawsuit over the display at the Queens courthouse? Here we come to the second explanation: such a lawsuit would very likely fail. For one thing, notwithstanding its earlier decisions, it’s not clear that the Supreme Court would continue to apply the endorsement test to courthouse displays of the Ten Commandments. A couple of terms ago, in the Town of Greece case, the Court applied a different test to uphold the constitutionality of official, legislative prayer. Such prayer is constitutional, the Court said, because it is an important part of American tradition—and also because it does not coerce listeners to participate. Courthouse displays of the Ten Commandments are part of American tradition as well, and they also coerce no one. If the Town of Greece test applies, Ten Commandments displays would be constitutional as well.

The Court is notoriously unpredictable in Establishment Clause cases, though, and it could well continue to apply the endorsement test to courthouse displays. Even so, it’s unlikely the Queens murals would be unconstitutional. True, an observer could perceive a religious message. Perhaps the implication is that our fundamental law is of a piece with its divine predecessor, and that we, like the ancient Hebrews, are united by our worship of God. But observers could draw a variety of other messages as well. One very plausible interpretation is this: our Constitution is part of the great tradition of Western law, in which the Ten Commandments play a vital role. Another would be, these are two parallel episodes of lawgiving: Just as the ancient Hebrews were a community bound by a received law, so are we Americans today—although our law comes, not from God, but from the people itself. Perhaps there is no special meaning at all. Perhaps the artist was simply trying to dignify the building in a way that people of the time would find familiar and appropriate.

In short, the mural is not clearly an endorsement of religion. Moreover, it has been there for about 70 years now. As Justice Breyer reasoned in one of the Ten Commandments cases, the fact that a display has gone unchallenged for decades suggests that people do not perceive it as an insult or a religious endorsement. To remove the mural now, on the ground that it impermissibly endorses religion, would suggest that government has an affirmative hostility to faith—a suggestion bound to insult believers and cause even greater social tension than allowing the mural to remain. Although the Court might not allow the mural to be installed in a courthouse today, the fact that it is already in the Queens courthouse gives it a kind of grandfathered status.

So, it seems likely the mural will remain. If you’re in the neighborhood, go take a look. You might also visit the nearby Rufus King Museum, the home of one of the Framers of the Constitution—though not, as far as I can tell, one of the Framers depicted in the mural—and the last Federalist candidate for President of the United States. What he would have thought of the murals’ constitutionality, I’m pretty sure I know.

Witte & Nichols, “Religion and the American Constitutional Experiment” (4th ed)

In April, Oxford University Press released the fourth edition of Religion and the American 9780190459420Constitutional Experiment, by John Witte, Jr. (Emory) and Joel Nichols (St. Thomas-Minnesota). The publisher’s description follows:

This accessible introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors provide extensive analysis of the formation of the First Amendment religion clauses and the plausible original intent or understanding of the founders. They describe the enduring principles of American religious freedom–liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion–as those principles were developed by the founders and applied by the Supreme Court. Successive chapters analyze the two hundred plus Supreme Court Continue reading

Dispatches From Kabul: Walls of Separation and the Call to Prayer

Green Zone

Former CLR Fellow Jessica Wright ’14 is currently working as an attorney in Kabul, Afghanistan. This post is part of a series of reflections on her experiences there.

In New York it was the sirens that nettled, piercing through triple-paned glass seventeen stories above the avenue at all hours of the day and night. In Kabul it’s the call to prayer that distracts, albeit less frequently, and which I wake to most mornings. There’s the initial crackle of the loudspeaker, a clearing of the throat, and then a momentary struggle to find the right pitch. The opening words of the azan ring out clearly and confidently – Allahu Akbar – but sometimes, part of the way through, the voice wavers and there is an awkward adjustment of the register, an interruption that could be obviated with the initial use of a pitch pipe or the playing of a middle C, I’ve thought. Then again, I’ve never seen a pitch pipe in Afghanistan, and I suppose it would be difficult to put a piano in a minaret.

Since September, we’ve had a string of mediocre muezzins, criers who never fail to rouse us from our sleep just before dawn, but whose recitations of the takbir and shahada – the Muslim Statement of Faith – leave much to be desired. It’s a bit ironic that they’ve been so lacking, considering that muezzins are traditionally chosen for their superior vocal skills. The first, Bilal ibn Rabah, was supposedly plucked from obscurity by the Prophet Mohammad for his beautiful voice. The idea was that the more melodious and clear the expression, the more powerful the azan, and therefore the more compelling would be the spiritual ideology of Islam sung in those eight verses. Allahu Akbar (four times) / I acknowledge that there is no deity but God (twice) / I acknowledge that Mohammad is the Messenger of Allah (twice) / Hasten to Prayer (twice) / Hasten to success (twice) / Prayer is better than sleep (twice) / Allah is greatest (twice) / There is no deity but God (once). This standard of qualification seems not to be taken seriously in my Kabul neighborhood. Perhaps the benchmark here is pünktlichkeit, in which case I’ve no doubt that our muezzins would be considered rousing successes. It’s disappointing, though, that their rendition of the azan does not resonate across the land as an otherworldly call to the divine.

To make matters worse, our current prayer leader has taken to conversing with himself over the loudspeaker after the initial recitation. The intonation is thoughtful, even philosophical, as if he is contemplating deep and important questions out loud. One morning, as I was lying in bed listening to his slow, punctuated words, I started thinking about America and Constitutional law and Jefferson’s letter to the Danbury Baptists. I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. That wall was adopted by the Supreme Court, becoming authoritative in Reynolds and “high and impregnable” in Everson. In context, Jefferson’s pithy metaphor concerned his opposition to an established national church rather than a belief in strict separationism, but it is a comforting metaphor at dawn while being sermonized over a loudspeaker. In such moments, prayer is not better than sleep.

***

They call the enormous concrete blast wall surrounding the U.S. Embassy near Massoud Circle the King Kong wall because it is a barrier so overwhelming that only a fictional movie monster could surmount it. Last week as we were driving by, a colleague said, “That thing should be considered a wonder of the world.” The grey concrete casts a long shadow on passers-by and dwarfs all of the buildings in its vicinity. I’ve wondered recently if the song of the muezzin reaches past it, through the security maze of the Green Zone, and into the container homes of my compatriots at the U.S. Embassy. It must, I think, since after explosions in and around the city we hear the air raid warning and the “Duck and Cover” alert. And maybe they think it’s beautiful, even broken and uneven, the one authentic bit of Afghanistan they are able to experience from within the walls that keep them safe, but which also limit their exposure to the rest of the country. They see the sky above their compound and the streets of Kabul, but the latter only from 8,000 feet when leaving the base by MilAir helicopter.

Blast walls MOF

Because they can’t go out, we occasionally go in, and it was during a recent lunch meeting that I had occasion to speak to a diplomat from the Human Rights section about the International Religious Freedom Report commissioned by the State Department. It’s a baseline for discussion, as he put it, a report that describes the status of religious freedom in every country. He reminded me that in recent months ISIS has put religious extremism in the news, but it was the International Religious Freedom Act of 1998 that made religious freedom an important priority for U.S. Foreign policy. Despite Afghanistan’s liberal Constitution, drafted and adopted with the help of the international community after the overthrow of the Taliban regime, lack of religious freedom remains a problem, most visible to the outside world when tragic stories surface. The stoning of Rukhshana in Ghor Province and the lynching of Farkhunda in Kabul are just two of many.

We discussed the tension in the text of the Constitution, something that he believes many moderate Muslims are reluctant to admit. Islam is the religion of the state and no law can be contrary to the beliefs and provisions of the sacred religion of Islam, but the Constitution also says followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provision of law. “How many Afghan Christians do you know?” he asked, rhetorically. I shook my head. According to the 2014 Report, there are a few Christians in Afghanistan who practice their faith in hiding, as well as one remaining Jew. And while apostasy is no longer formally punished by the government, it is still regarded as a serious offense and may result in the deprivation of the accused’s property and possessions, the invalidation of marriage, and in some cases, beheading. Such punishments are determined via informal mechanisms, often per the dictates of community religious leaders.

Because there are no clear criteria or qualifications, almost any Muslim male can claim to be a mullah, a religious leader. As a result, there has been a backlash against informalism and lack of defined authority of late, and a move toward the more structured interpretations of Islam. I remembered that Farkhunda was a salafi, a devout Muslim who honed closely to the orthodox interpretations. The diplomat explained that some think a turn toward formalism will help curb other problems like the persecution of the Shia minority, the resurgence of the Taliban and the imposition of their interpretation of Islam, and similarly, the rise of Daesh. “When it comes to issues of law and religion in this country, nothing is simple,” he said.

“So if the Report is a baseline for discussion, what happens next? A new moral code for Afghanistan written by the State Department?” I asked. He reminded me that there are USAID programs that promote moderate Islam and engage Islamic leaders. The State Department funds efforts to combat Islamic fundamentalism through a variety of initiatives aimed at religious organizations and activities. “Remember the rhetoric after 9-11 about ‘combatting the root causes of terrorism?’” I nodded, and suddenly recalled my pre-dawn musings. “Has anyone considered Jefferson’s wall of separation?” I asked. He looked puzzled for a moment but then explained that he doesn’t deal with Establishment Clause issues. “I just write the report. As I understand it, the program can have a significant religious component, but that’s OK if it’s not the primary focus.”

City blast wall

I thought back to discussions from my Constitutional Law and Law and Religion classes. The Lemon test is used to determine whether government funding or action runs afoul of the Establishment Clause – secular purpose, primary effect neither advancing nor inhibiting religion, no excessive government entanglement. I paused for a moment, remembering the late Justice Scalia’s disdain for the test in Lamb’s Chapel: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again…” But surely the government, as part of its foreign policy agenda, can engage religious leaders – and religion – in a way that is apart from the domestic constitutional framework?

Now curious about the Establishment Clause implications of religion-focused foreign aid, I left the meeting with more questions than I came with. As I handed over my visitor badge and reclaimed possession of my passport and cellphone at the front gate, I asked the diplomat the last question I thought I could get a concrete answer to: “Can you hear the azan in here?” He wasn’t looking at me. “Hope that was helpful and let me know if you have any other questions about the report,” he said. Perhaps he hadn’t heard me. I wanted to repeat the question, but he had already slipped to the other side of the metal detector, his phone to his ear as he waved at me sideways.

***

Religion is woven into the social fabric of Afghanistan. There are the ritualistic and cultural manifestations like the azan, the scheduling of meetings around prayer times, the prayer rugs strewn across our conference room, and the pitchers for washing in all of the bathrooms. Women and men do not touch in public, and in most cases, women cover their hair. At the top of most legal charters, even commercial ones, the following phrase is written: In the Name of Allah, the compassionate, the merciful. God is in the everyday spoken language, too: Salaam alaikum, Walaikum salam, Khoda hafiz (Peace be upon you, And upon you peace, May God protect you). And there are more direct involvements as well: state-funded religious schools; religious courts; the use of Hanafi jurisprudence as a constitutional gap-filler; and the existence of the Ulema Council which meets regularly with the President to advise him on Islamic moral, ethical, and legal issues. It’s difficult to imagine a high and impregnable wall between church and state in Afghanistan; it seems as untenable as the implementation of sharia in America.

*KabCityEdit

The sun is setting on another day in Kabul. I can hear the incessant hum of military helicopters, and from the window of my office I can just make out a group of fighting kites. They look like black specks on the horizon. I’m waiting for the interruption of the late afternoon azan, thinking about constitutional law cases like Reid v. Covert, Lamont v. Woods, and Baker v. Carr. How far does American constitutional law reach? Does the Constitution serve as a structural restraint on the actions of the U.S. government, regardless of time and place? Allahu Akbar, the muezzin sings. Can the diplomats hear the call to prayer?

Photos: 1. Inside the Green Zone/International Zone in Kabul, Jessica Wright; 2. Near the outer walls of the Ministry of Finance in Kabul, Nabila Barmaki; 3. Kabul City blast wall, Jessica Wright; 4. At the Darul Aman Palace ruin overlooking Kabul, Wolfgang Müller.

International Law and Religion Moot Court: Venice 2016

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The Fondazione Marcianum in Venice

The Fondazione Marcianum, a research center in Venice, will hold its second annual international law-and-religion moot court competition this coming March. The competition, which gathers law students from universities around the world, is the only one of its kind: a truly international competition in which students argue a case before panels simulating both the US Supreme Court and the European Court of Human Rights. Full disclosure: I took part as a judge in last year’s competition and found it extremely worthwhile. This year, I’ve helped craft the problem and will deliver one of the keynote addresses.

This year’s problem relates to the establishment of religion — to school prayer, specifically. You can download the problem here. I greatly encourage law students to consider competing. It’s a truly unique educational experience. Any questions, please contact the Fondazione here.

Krauthammer on Rescuing Syrian Christians

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Syriac Orthodox Christians in Damascus (Russia Today)

A nice piece by Charles Krauthammer in the Washington Post, on the efforts of Lord George Weidenfeld, a British Jew, to save some Syrian Christians. Weidenfeld was himself rescued by Christians in 1938. A British Protestant group brought him to London from Vienna, thus saving him from the Holocaust. Now, he says, he wishes to repay the favor. It’s a small effort, only 2000 families, but it’s something.

Notably, the US Government has declined to participate in Weidenfeld’s efforts, as they target Christians, as opposed to other religious minorities suffering in Syria. No doubt, this reticence comes from the by now well-known American policy of avoiding the appearance of sectarianism in the Mideast. Maybe some people in the Administration even think there would be some sort of Establishment Clause problem with helping Weidenfeld.

Both these concerns are silly. If the US Government were assisting only Christians in the Mideast, that could be a PR problem–for the US and for the local Christians. But the US is helping many religious minorities. Just last summer, it evacuated besieged Yazidis on Mt. Sinjar. So helping Weidenfeld’s group couldn’t be considered favoritism. Anyway, no matter what the US does, it will be seen in the region as a “Christian” power, however ironic that might seem to us here.

As for the Establishment Clause, I don’t know where to begin. Even if the Clause were to apply to such matters, the fact that the US Government distributes foreign assistance to all sorts of religious minorities in the Mideast, not just Christians, would surely satisfy any reasonable neutrality requirement, even the so-called endorsement test. The endorsement test asks whether government action makes non-adherents feel like political outsiders, second-class citizens. Would non-Christians in America really feel like outsiders because some small portion of US aid goes to help a charity rescuing a couple thousand Christian families from war-torn Syria?

Gribble, “Navy Priest”

The figure of the military chaplain is perhaps not as celebrated today as it once Navy Priestwas; like many traditions, it, too, is challenged by the imperatives of change. Here is an interesting study of a successful chaplain who served both his country and his faith honorably: Catholic University Press’s recently released Navy Priest: The Life of Captain Jake Laboon, SJ, by Richard Gribble, CSC. The publisher’s description follows.

Navy Priest is a compelling biography of the Jesuit priest and Navy chaplain John Francis (Jake) Laboon. Father Jake made a significant contribution to the United States Navy, both as a World War II submarine officer and, most prominently, during a 22-year career as a chaplain. Laboon served as the first chaplain for the Fleet Ballistic Missile Submarine Program, but also served as chaplain at his alma mater the United States Naval Academy, undertook a tour of duty with the US Marines in Vietnam, where he was awarded the Legion of Merit, and later served as Fleet Chaplain of the United States Atlantic Fleet.

Father Jake Laboon was born on April 11, 1921 in Pittsburgh, Pennsylvania. The third of nine children, he was raised in a faith-filled family. He attended Catholic schools until his matriculation to the United States Naval Academy in June 1940. A tight end for the USNA football team and an All American in lacrosse, Laboon graduated with his classmates in June 1943. He served with distinction in the Pacific submarine force, winning the Silver Star for gallantry aboard USS Peto (SS 265).

Laboon left the Navy in 1946 and immediately entered formation for the Society of Jesus (Jesuits). He was ordained a priest in 1956. Two years later he reentered the Navy as a chaplain, where he stayed until 1980. He then joined the pastoral staff serving at Manresa Retreat Center, in Annapolis, and was for four years the pastor of St. Alphonsus Rodriguez Parish in Woodstock, Maryland. In 1995 the destroyer USS Laboon was commissioned in his honor. Loved by all with whom he had contact, Father Jake was a model of Christian fidelity, faith and complete dedication to God and country.

Call for Papers: The Legitimate Scope of Religious Establishment (March 7-9, 2016)

The Fondazione Studium Generale Marcianum in Venice has issued a call for papers for a conference, “The Legitimate Scope of Religious Establishment, to take place on March 7-9, 2016:

 How best to deal with the relationship between law and religion is one of the fundamental questions that every liberal democratic country must encounter. Comparative constitutionalism worldwide sees a large spectrum of state and religion models. The American model of separation, for instance, is an exception in liberal-democratic countries, where one can find a variety of ways in which religions get support from the state. In some democracies there is even explicit acknowledgement of one religion as the official religion of the state.

While it is clear that most democracies reject the idea that religion should be privatized, one is still hard pressed to ask: What are the essential features of establishment regimes? Should any limits be set to the establishment of religion? Are there any means of support that should necessarily be ruled out? May a decent state grant preferential treatment to one religion over other religions (or some of them)? If so, on what legitimate basis could this be done, and in what ways?

This workshop will be devoted to a discussion of these questions and other related topics. We are especially focused on papers that address normative questions about establishment of religion from a particular point of view, but comparative papers are welcome too. The keynote speaker will be Prof. Joseph Weiler.

Scholars are invited to submit a 2-3 page abstract (double-spaced) by April 15th, 2015. Abstracts will be evaluated by the organizing committee and decisions made in May 2015. Please direct all abstracts and queries to: gideon.sapir@biu.ac.il or andrea.pin@unipd.it.

Who Speaks on Your License Plate?

The Supreme Court recently granted cert in Walker v. Texas Division, Sons of Confederate Veterans, Inc. The issues presented in that case are whether specialty license plates are a form of government speech, and whether Texas engaged in viewpoint discrimination when it rejected the SCV’s plate design featuring the Confederate battle flag. In a 2011 article in the Tulane Law Review, I wrote about license plate speech more extensively from a perspective slightly different than that presented in the Walker v. SCV case. My focus was on the question of Establishment Clause responsibility for religious messages on license plates. But the issues raised overlap significantly.

Imagine a state decides to display religious symbols or text on a license plate. South Carolina, for instance, created a specialty plate featuring a stained glass window with a superimposed cross and the words “I Believe.” Efforts to create a plate with a similar design failed in Florida. A federal court ultimately permanently enjoined South Carolina from issuing the plates.

Does a state’s specialty license plate program create a public forum for speech? If religious messages are displayed on the license plates, is the message purely private religious speech, or is it attributable to the state for Establishment Clause purposes?

Continue reading

Subway Ads and Mental Maps

Many thanks to Mark Movsesian and Marc DeGirolami for letting me return with a couple of guest posts.

I’ve been intrigued by some recent posts on this blog and how they confirm my long-held view that the normative decisions we make with respect to the law’s treatment of religion are deeply intermeshed with cognitive choices we make — how we “see” and understand religion.  Religious phenomena don’t fit easily or self-evidently into the mental maps by which we divide the pieces of the secular world.  All we can do is approximate, and those approximations matter.

subway1Let’s begin with Mark’s fascinating and wonderfully observant recent post about an ad for the Marble Collegiate Church that he recently saw in a New York City subway.  The ad itself was unremarkable, touting Marble Collegiate as “Church the way you always hoped it could be.”  (Marble Collegiate itself is more remarkable, founded in 1628 as a Dutch Reformed congregation and serving in the 20th century as Norman Vincent Peale’s pulpit for some 50 years.)  But the ad included a prominent disclaimer form the MTA (the local transit agency) taking up the bottom third of its precious space: “This is a paid advertisement sponsored by Marble Collegiate Church.  The display of this advertisement does not imply MTA’s endorsement of any views expressed.”  What gives? Continue reading

Disapproving Religion in the NYC Subway

Here’s a post about two advertisements I happened to see while riding the New York City subway this past weekend. The ads reveal much about the subtle disparagement churches and other religious organizations sometimes experience from government agencies in the Big Apple.

subwayTake a look at the photo on the left. It shows an ad for Marble Collegiate Church in Manhattan. As far as I can tell from its website, Marble is a mainline, Protestant congregation, committed to progressive causes like diversity and same-sex marriage. Marble, the ad proclaims, is “church the way you always hoped it would be.”

Pay particular attention to the bottom of the ad, which contains a disclaimer added by the MTA, the government agency that runs the subway. The disclaimer is in bold type and takes up about 25% of the ad space. It is unsightly, in a different font and format from the rest of the ad, and definitely distracts the reader. It says: “This is a paid advertisement sponsored by Marble Collegiate Church. The display of this advertisement does not imply MTA’s endorsement of any views expressed.”

This is very odd. True, the Supreme Court’s “endorsement test” provides that government may not take actions a reasonable observer could understand, in the circumstances, as an endorsement of religion. (This explains why local governments are so careful about Christmas decorations on public property). The MTA presumably insisted on the disclaimer to make clear to subway riders that, by posting Marble’s ad, it did not endorse the church’s underlying religious message.

But the endorsement test does not require a disclaimer here. No reasonable observer could think the MTA had endorsed Marble’s message by posting its ad. There are ads in subway cars for a variety of businesses and nonprofit organizations. Nobody thinks the MTA vouches for the truth of those ads, or even the good faith of the sponsors. Will cosmetic surgery “change your life?” Will Foursquare “lead you to places you’ll love?” Who knows? But the MTA doesn’t think it necessary to attach disclaimers. No one would expect it to do so.

For example, here’s an ad my brother pointed out to me, for a company boozecalled delivery.com. The ad says the company will deliver beer, wine and liquor on demand, thereby allowing customers to “Booze Wisely.” There’s no MTA disclaimer in this ad. But why not? If reasonable people could think the MTA had endorsed Christianity by posting Marble’s ad, why couldn’t they think the MTA had endorsed drinking by posting delivery.com’s? If anything, the danger of misunderstanding is higher. The delivery.com ad offers a 30% discount to people who include the word “SUBWAY” with their orders. Marble didn’t trade on the name “subway” or offer special treatment for straphangers.

Now, supporters of the MTA’s disclaimer policy might argue there’s no real harm here. The disclaimer merely reminds people of an important constitutional principle, namely, that civil government does not take positions on the truth of religious propositions–like whether Marble really is, as its ad claims, what people would hope from a church. At worst, the disclaimer is a bit unnecessary. What’s the cause for complaint?

It’s this: Requiring church ads–and only church ads–to include disclaimers is a kind of disparagement that places churches at an unfair disadvantage in the marketplace of ideas. The inescapable implication is that there is something uniquely impolite and dangerous about religion–more than doubtful cosmetic treatments, consumer fantasies, and boozing it up at home–and that government must keep its distance. The MTA’s policy doesn’t suggest state neutrality respecting religion, but disapproval. For the record, the endorsement test prohibits that as well.

UPDATE: Perry Dane points me to the MTA policy, which actually extends to ads with “political” and “moral” content as well as “religious.” I’m surprised, because I’ve seen plenty of ads with political and moral messages that don’t carry disclaimers, but maybe the MTA just hasn’t gotten around to labeling everything. Still, the differential impact on religious messages has implications under the endorsement test.