Tuesday, May 19, 2009

Objections to Passive Displays by Government

Imagine two cases:

Case One

John Doe brings an action against the City of Lincoln under the Establishment Clause claiming that a Nativity scene in Holmes Park is unconstitutional because it "conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the community."

Case Two

John Pilgrim, a devout Southern Baptist, brings an action against the City of San Francisco under the Free Exercise Clause claiming that a "Gay Pride--Stop Homophobia" display in a city park conveys a message to religious believers such as Pilgrim that they are not full members of the politcal community and a corresponding message to supporters of the display that they are favored members of the community.

Under the existing law, Doe will win his case under County of Allegheny and Pilgrim will be laughed out of court because there is no right to enjoin governmental displays that merely offend one's religious beliefs. The remedy for Pilgrim is to avert his eye from government displays he finds offensive; a passive display does not substantially burden Pilgrim's free exercise liberty.

How should these cases come out under the First Amendment?" Should both claims succeed? Both fail? Or should one succeed (which one?) and the other fail? Explain.

No comments: