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So What's the Law That Judges and Government Officials Should Follow?

In the wake of the Ten Commandments cases, how should an honest lower court judge -- or government official -- apply to decide whether some government speech that has a religious flavor violates (or would violate) the Establishment Clause?

(1) Apply the endorsement test, on the theory that the majority in Allegheny v. ACLU endorsed it, and that it therefore represents the most recent majority view on the subject.

(2) Determine whether the government speech is likely to prove religiously divisive, as Justice Breyer's controlling opinion in Van Orden v. Texas suggests -- or, if the issue is whether to remove a display, whether the removal of the display is likely to prove more or less divisive than retaining the display.

(3) Apply "legal judgment," for which there can be "no test-related substitute," also following Justice Breyer.

(4) Something else.

I'm genuinely curious what the legal answer should be here. After all, many government officials (maybe not all, but many) genuinely want to follow the law. They may even realize that they can get sued (or, if they're judges, that their decisions will be appealed) no matter what they do, and that they can't be sure how the case will come out. But they'd like to do what the law requires. What, though, is the law now, following the splintered opinion in Van Orden?

I'd love to see some serious responses (rather than jokes, rants, or fulminations). Also, let's avoid in the comments to this post express criticisms of the Supreme Court's decision or its broader caselaw: Rather, let's see what the caselaw requires, and then each of us can use that as a means of evaluating that caselaw.

exit88 (mail):
The overall message of the two cases is clear. It is a strong encouragement for anyone dealing with this situation to "stop it." For religious people to stop looking for new ways to have the state impose religion on its citizens and for supporters of the separation of church and state to stop looking for things to sue to remove.

Anyone who "genuinely want[s] to follow the law" will be very safe in following this message. In light of these cases it will be pretty clear that people who continue to sue to remove minor religious displays or look for new ways to display religious items are far more interested in creating conflict than following the law.
6.30.2005 9:05pm
Steve:
No one knows what the law is. That's what Justice Scalia keeps pointing out.

I don't want to go too far off track, but one reason I think the Court was right to punt in Kelo is that because once it goes down the road of scrutinizing local land use decisions, inquiring into motive and whether land is sufficiently blighted or whatnot, it risks starting down the same road of uncertainty that Establishment Clause jurisprudence has taken. Case-by-case decisions where the Court constitutes itself as a local zoning board, or watches dirty movies in the basement over lunch, are a poor way to make a body of law.

Returning to the Establishment Clause, there is no single principle to follow, but the overall sense from the Court seems to be that respecting the free exercise of religion is the most important consideration. This certainly came out in the questioning at oral argument on these Ten Commandments cases, if not in the final decisions themselves. In other words, where in doubt, the courts should try to find a way to avoid interfering with these largely symbolic enactments.

I thought the most significant difference between the two cases was not Justice Breyer's divisiveness language that everyone keeps referring to, but rather the telling statements of the Kentucky officials who repeatedly affirmed that their intent was to acknowledge Christianity. I think the message is that if local officials say the right things as far as wanting to remain neutral, displaying monuments for historical rather than religious reasons, etc., the courts should try to give them the benefit of the doubt. Only in egregious cases should the courts step in; or at least, that's where we are until the next decision.
6.30.2005 9:07pm
Bruce Moldovan (mail) (www):
Removing a religious display is always more divisive than retaining it, because the vast majority of people are religious (that's why it was put up in the first place). The First Amendment is not based on majority rule--that's the whole damn point. Surely the majority's degree of whining should not be taken into account in determining a constitutional violation.
6.30.2005 9:46pm
noahp (mail) (www):
Despite his stated rejection of the endorsement test, Breyer seemed to be following something like that test as set forward in Allegheny, with its focus on the "context" of the monument. For Breyer, the decisive factor was the oldness of the monument, the inference being that no "reasonable observer" would find such an old monument offensive, just as they would not find religious symbolism on government monuments in Washington, D.C. offensive. The Rehnquist, Thomas, and Breyer opinions additionally expressed very strong skepticism about Van Orden's standing to bring the lawsuit and the harms Van Orden has allegedly suffered. Perhaps a prudential standing principle, ala Newdow, will be erected against bringing lawsuits based on such trivial harms.
6.30.2005 9:54pm
Jim Rhoads (mail):
The problem with this area is that it remains chaotic. There is no really safe position for a local government official who is asked to make a concrete decision like the ones now being considered regarding the Ninth Circuit Seal and the Los Angeles Seal.

I would put both of these in the de minimis/trivial harm/judgment category found ok in the Texas case. But exit 88 would "just say no" anyway.

And why is Justice Breyer's decision considered controlling. It only commanded one vote. So long as the Court's make-up does not change, I suppose, it is controlling, since he is kind of the swing vote. But does that decision commmand analytical deference like some of the decisions of Brandeis, and Holmes, for example? I haven't seen any commentary arguing that his is that kind of opinion.

As an advisor to decision makers, I would counsel having a very analytical lawyer or law clerk make a detailed factual analysis comparing the facts of each of these latest Supreme Court cases to the case at hand and providing the matrix to me. Then I would make the call telling the decision makers that we could well have an expensive litigation matter on our hands, because these cases invite case by case development of the law. Experience shows that such "line drawing" opinions foster litigation for years to come.
6.30.2005 10:27pm
Eric N. Kniffin:
It seems to me it has everything to do with intent, or at least how the intent is perceived. Which leads me to ask, what do the liberal justices on the Court think the intention was of those who, for example, designed the Supreme's courtroom?

I hear so much focus on the *intent* of those who erect monuments. I tend to think that their intent was not so pointed as, say, Roy Moore's. But neither was it so neutral that they were merely recording things that were part of our history. Can we discern what the intent was behind the myriad of legitimate--or rather, untouchable--instances of Christian iconography in federal buildings in DC?

Would *that* intent be considered constitutional today? Or, it is just impossible to think that someone would erect the same buildings today without being a Roy Moore, the changes in our culture being what they are?
7.1.2005 1:43am
Bob Woolley:
I don't feel qualified to answer Eugene's question directly. But let me suggest a test case: the 1954 "under God" addendum to the pledge of allegiance. If another court has to face the merits of that question, the Kentucky decision's emphasis on religious intent would seem to dictate a finding of unconstitutional religious endorsement; both Congress and Eisenhower were about as flagrant about it as the city council in Kentucky.

Of course, on divisiveness, whatever of it is caused by the presence of those two words pales by comparison to what would be generated by its attempted removal.

What result would come from applying the "legal judgment" test? I haven't the foggiest idea. We'll have to ask Breyer.
7.1.2005 7:15am
Bob Woolley:
I don't feel qualified to answer Eugene's question directly. But let me suggest a test case: the 1954 "under God" addendum to the pledge of allegiance. If another court has to face the merits of that question, the Kentucky decision's emphasis on religious intent would seem to dictate a finding of unconstitutional religious endorsement; both Congress and Eisenhower were about as flagrant about it as the city council in Kentucky.

Of course, on divisiveness, whatever of it is caused by the presence of those two words pales by comparison to what would be generated by its attempted removal.

What result would come from applying the "legal judgment" test? I haven't the foggiest idea. We'll have to ask Breyer.
7.1.2005 7:15am
CharleyCarp (mail):
I don't think this is difficult at all. If a client came to me with a proposal to make a display of religious matter, I'd ask 'what are you trying to do'? If I didn't think the client was telling the truth, I'd probe a little. If the answer is demonstrate religiosity, or reinforce religious heritage, or motivate believers, then I'd say no. If it's a historical artifact, and I think much official art in California will fit this (a necessary byproduct of naming cities after religious figures, the mission history, etc), then OK.

The only difficulty is that the question can't be answered just by looking at the object. This is troublesome for law professors, I suppose, but for actual lawyers -- and for judges to whom disputes will get presented -- no so hard.

The chief practical difficulty here, I suppose, is the client who asks 'I want to go as far as is permissible to demonstrate my community's commitment to Christianity, without running afoul of the Supreme Court: what can I do?' The easy answer, I guess, is 'help the poor.'
7.1.2005 9:40am
CharleyCarp (mail):
I hasten to add that providing competent legal advice often requires more than just a superficial look at things. A corporate client brings you a proposed press release for review: you may need to probe to make sure it is literally true, and to make sure that even if literally true it is not misleading. 'What message are you trying to send?' is a question you have to ask. 'What are people going to think when they read this, regardless of what you intend to communicate?' is another.
7.1.2005 9:45am
Aultimer:
If I were a local government executive, I'd only approve a display with religious elements once I'd solicited input from the constiuents and all the various civic community groups, church coalitions and fringe folks weighed in and came up with a potpourri they could all agree on.

I acknowledge the unpleasant P.C. feel of this model, but I'm certain it's more of what the founders had in mind than simpleminded majority rule.
7.1.2005 10:01am
Matt Barr (mail) (www):
I would counsel separation activists that they shouldn't pursue the removal of displays or monuments that have been around for a while, and I would counsel religious activists that they shouldn't try to put anything new up.

Which, if you consider religious-themed displays in the public square part of the pastiche of Americana, is unfortunate. 2035: "Grandpa! Is that the Ten Commandments there next to the courthouse? How can they get away with that?" "Well, Billy, that's been there since the 70s. You won't find anything from the last 30 years or so. And don't say 'Ten Commandments' so loudly, we're in a public place."
7.1.2005 10:18am
arbitraryaardvark (mail):
When federal law is muddled, it's worth re-reading the state constitutions. In Indiana, the governor wants to erect a 10C monument at the statehouse that is currently at a subway franchise. I've blogged that to do so would violate section 4 of the indiana bill of rights.
7.1.2005 2:24pm