My final exam in my First Amendment course last year involved a public middle school that allowed teachers to decorate their classrooms to celebrate holidays and other special occasions. So, some teachers were allowed to display gay pride, transgender pride, and Black Lives Matter flags or posters. However, when a Catholic teacher tried to display a nativity scene in her classroom during the month of December, her principal ordered her to remove it because it violated the Establishment Clause.
Does it?
Or does the censorship order violate the teacher’s free exercise and free speech rights?
Notice this is very close factually to the Kennedy case.
And the current doctrine asks whether “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.”
It is a silent, passive display in the teacher’s classroom. Is it coercive?
Or is it merely a positive example of pluralism and diversity on the faculty of a public school?
No student is being asked to engage in any religious celebration. All the Catholic teacher is asking is that her classroom decorations be treated equally to those of the other teachers.
As in Kennedy:
--I think the Establishment Clause does not require censorship,
--and the Free Speech and Free Exercise Clauses do protect the Catholic teacher’s right to decorate her classroom with a nativity display to recognize the Christmas holiday.
The Lemon test is gone.
The Wall of Separation metaphor is gone.
The test is one of confident pluralism and viewpoint equality in the public square.
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