American Legion Case: Various Tests

 Consider the two tests discussed by the Majority and the dissent in American Legion:

I. Justice Alito's Plurality Opinion: The Lemon test does not apply to the retention of "established, religiously expressive monuments. symbols, and practices." More Alito: "The passage of time gives rise to a strong presumption of constitutionality." p. 1804 & 1805.\

II. Justice Ginsburg's dissent: She applies the Lemon endorsement test and asserts that "a display of a religious symbol" is "presumed to endorse its religious content." p. 1810

Now consider Justice Kavanaugh's concurring opinion on p. 1807-1808:

"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in  history and tradition; or (ii) treats religious people, organizations, speech, or activity equally   to  comparable  secular  people,  organizations,  speech,  or  activity;  or  (iii) represents  a   permissible  legislative  accommodation  or  exemption  from  a  generally applicable law, then  there ordinarily is no Establishment Clause violation. The   practice   of   displaying   religious   memorials,   particularly   religious   war  memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ."

So, where does the opinion leave newer displays, ones that are not yet “established” by the passage of time?

How long is long? 

What test applies to newer displays? 

Suppose the City of Kearney erects a cross monument for local soldiers who died fighting in Iraq or Afghanistan?

Would Lemon apply? 

Or some kind of historical traditions test that would uphold the types of displays existing throughout American history?

Passive Displays in Public Places

 Let me start with a general question before we discuss the Establishment Clause issue in this case. 

Suppose a gay-lesbian group got permission from the city of Pittsburgh to put up an artistic display celebrating “Marriage Equality Week.” 

The display was located on the Grand Staircase of the County Courthouse. 

Further suppose that another group of citizens, calling themselves the “moral majority,” publicly demanded that the City remove the display.   

Would it be correct to refer to this attempt to get rid of the display as censorship? As what the law calls a hecklers’ veto? 

If the City removed the display to appease the protesters, would this be a case in which liberty was advanced or one in which liberty is inhibited? 

Now suppose the display is a Christmas Nativity display?

In Flanders Fields

 

In Flanders Fields

By John McCrae

 

In Flanders fields the poppies blow

Between the crosses, row on row,

    That mark our place; and in the sky

    The larks, still bravely singing, fly

Scarce heard amid the guns below.

 

We are the Dead. Short days ago

We lived, felt dawn, saw sunset glow,

    Loved and were loved, and now we lie,

        In Flanders fields.

 

Take up our quarrel with the foe:

To you from failing hands we throw

    The torch; be yours to hold it high.

    If ye break faith with us who die

We shall not sleep, though poppies grow

        In Flanders fields.

Update on Kennedy Case: "Bremerton school board reaches nearly $2M settlement with praying football coach Joe Kennedy"

 I love pro bono cases that get paid 7 figures! Fox News 13 in Seattle (link) reported:

The Bremerton School Board accepted a nearly $2 million settlement with Joe Kennedy, who was fired for praying on the field. Kennedy is also being reinstated as a high school football coach.

Joseph Kennedy's case about his firing made it all the way up to the Supreme Court -- with the court ruling 6-3 in favor of the coach getting his job back. In an August 2022 ruling, the justices said Kennedy's right to pray on the field was protected by the First Amendment.

In October 2022, a court filing stated that the Bremerton School District must hire him back by March 2023.

"Mr. Kennedy will be an assistant football coach for Bremerton High School for the 2023 season. Mr. Kennedy has completed human resources paperwork and we are awaiting the results of his fingerprinting and background check. Mr. Kennedy will need to complete all training required by WIAA," the district said on its website on March 6.

On March 6, the district announced it reached an agreement to settle Kennedy's attorney fees for $1,775,000. The settlement will be presented to the school board on March 16, where they need to approve it.

"As with any other assistant coach, Mr. Kennedy will be included in coaching staff communication and meetings, spring football practice and other off-season football activities," the district said on its website.

Engel v. Vitale: A Question

 Board of Regents wrote a prayer and school board directed the School District's principal to cause the prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day. 

It was a voluntary prayer--no child was compelled to recite the prayer.

The prayer was a non-denominational harmless single sentence: “"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

This short prayer is comparable to the opening ceremony for sessions of the Supreme Court of the United States. Here is how the Court itself (https://www.supremecourt.gov/about/procedures.aspx) describes its opening ceremony:

 

“When the Court is in session, the 10 a.m. entrance of the Justices into the Courtroom is announced by the Marshal. Those present, at the sound of the gavel, arise and remain standing until the robed Justices are seated following the traditional chant: ‘The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!’"

 

New York Court of Appeals upheld the daily prayer activity so long as the school does “not compel any student to join in the prayer over his or her parents’ objection.” (P. 1) [This court applied the Coercion Test, a test that protects individual liberty from compelled religious activities]

SCOTUS held that a voluntary daily prayer violates the incorporated EC because it amounts to an "endorsement" of prayer or an "encouragement" to recite the prayer. It also said the "constitutional wall of separation" required the prayer to be enjoined and that this was "no part of the business of government." P. 2.

What liberty interest is being protected by the EC in this case?

Or is liberty being restricted by the Court's reading of the EC in the sense that those who wish to recite the prayer are being denied the opportunity to do so? See Stewart's dissent: "I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."

How would Engel come out under a coercion test, such as in Barnette (the Pledge case discussed in my article)? See my Heckler's Veto article at p.263 (Judge Easterbrook on Pledge jurisprudence: "So long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance.") You protect liberty by protecting liberty, not by censoring the speech of others.

Is the voluntary prayer in Engel different from voluntary recitation of "under God" in the Pledge of Allegiance? Should the EC be interpreted to forbid the one and permit the other?

Notice the Court admits that it is not seeking to advance any real liberty interest: "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not."  P. 3.

So again I ask: How did a non-liberty test somehow get incorporated as a 14th Amendment "liberty" protected from "deprivation" by the states?

Jefferson as a Public School Adminstrator

                                              Daveed Diggs as Jefferson on Broadway
 

Here is a little bit of history that makes you think about religion in the public schools and the Establishment Clause: 

Jefferson was the first school board president for the public schools in the District of Columbia. In fact, an historian of the District of Columbia public schools credits Jefferson as "the chief author of the first plan of public education adopted for the city of Washington.” Interestingly (perhaps devastatingly for those who revere Jefferson as a strict separationist), the first official report on file indicates that the principal books then in use in the District of Columbia public schools were the Bible and Watts Hymnal.

See Wilson, Eighty Years of the Public Schools of Washington-1805 to 1885, 1 RECORDS OF THE COLUMBIA HISTORICAL SOCIETY 122 (1897).

So, think about this when we read the school prayer cases and cases forbidding public schools from endorsing religion.