Imagine: A Sleigh Full of Toys and Saint Nicholas Too

That is how I refer to Justice O'Connor's approach to Nativity displays in public parks under her infamous "endorsement" test. In other words, according to the Court, serving as a National Board of Interior Decorators, a Nativity display is probably okay so long as the display includes "a sleigh full of toys and Saint Nicholas too." Or a least a few plastic elves and perhaps a "talking wishing well."

County of Allegheny is an interesting case because we see two of the Court's EC tests (the third, of course, is Lemon/advance or inhibit):

1. the Lemon/endorsement test: This is a gloss on the Lemon test that states that for a government practice to be constitutional under the Establishment Clause, neither its purpose nor its effect must endorse a message approving or disapproving of religion. Thus, in Allegheny  the Christmas display would be unconstitutional if a "reasonable observer" (who's that?) would view the display as conveying a message of endorsement of religion, "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 political community."(p. 4)

When you see a Cinco de Mayo display in a public school or public park, do you perceive the "message" as one of inclusion or one of intolerance? In other words, is the display endorsing Mexican-Americans as favored members of the community and non-Mexicans as disfavored members of the community? Or is the display merely a recognition that a subgroup of our community is celebrating a holiday and the government is merely being inclusive and acknowledging that fact? If the Cinco de Mayo display is merely an inclusive recognition of a holiday that is important to a subgroup in the community, how is a Nativity scene (without elves and wishing wells) somehow an intolerant attack on non-Christians? 
The government often puts up a display not so much to recognize the underlying message of the display, but rather merely to recognize that a subgroup in the community is celebrating something that is special to them. As Kimberly Colby has suggested, when New York City put up a memorial plaque commemorating John Lennon and his song "Imagine," the City was not thereby endorsing his lyrics imagining the splendor of "no religion too." Was it? Or do you believe that the courts should enjoin NYC from displaying the John Lennon plaque under the EC and the Endorsement Test? Here is a link describing the Lennon Strawberry Fields/Imagine Memorial.


2. the coercion test--as Kenendy states it: "government may not coerce anyone to support or participate in any religion or its exercise." 

These are very different tests, the first one enforces a structural limitation on government power to "endorse" a religious holiday; the latter one protects a liberty interest to be free from forced participation in a religious ceremony or practice.

The former one often invalidates even a passive display that is perceived to endorse religion; the latter would almost never invalidate a mere display (since averting the eyes is almost always an option for those who take offense at the display).

3. Now consider how the original Constitution has "evolved" by judicial decree:

The Original, Enduring Constitution

Congress shall make no law respecting an establishment of religion


The Living, Breathing, Created Constitution

[Neither] Congress [nor state or local government] shall [put up any public display endorsing religion]

What do you think? Who should decide on the decorating of local parks and buildings? The local officials elected to make local decisions? Or the Supreme Court of the United States?

More on the Endorsement Test

Consider this excerpt from Allegheny: 

 In Lemon v. Kurtzman, supra, the Court sought to refine [Establishment Clause] principles by focusing on three "tests" for determining whether a government practice violates the Establishment Clause. Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.  This trilogy of tests has been applied regularly in the Court's later Establishment Clause cases.

Our subsequent decisions further have refined the definition of governmental action that unconstitutionally advances religion. In recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of "endorsing" religion, a concern that has long had a place in our Establishment Clause jurisprudence. Thus, in Wallace v. Jaffree, the Court held unconstitutional Alabama's moment-of-silence statute because it was "enacted . . . for the sole purpose of expressing the State's endorsement of prayer activities."

 

Allegheny on Endorsement test:

Of course, the word "endorsement" is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred."  Moreover, the term "endorsement" is closely linked to the term "promotion," and this Court long since has held that government "may not . . . promote one religion or religious theory against another or even against the militant opposite." Whether the key word is "endorsement," "favoritism," or "promotion," the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community."

On the difference between the Lynch nativity display and the Allegheny nativity display:

The concurrence applied this mode of analysis to the Pawtucket creche, seen in the context of that city's holiday celebration as a whole. In addition to the creche, the city's display contained: a Santa Claus house with a live Santa distributing candy; reindeer pulling Santa's sleigh; a live 40-foot Christmas tree strung with lights; statues of carolers in old-fashioned dress; candy-striped poles; a "talking" wishing well; a large banner proclaiming "SEASONS GREETINGS"; a miniature "village" with several houses and a church; and various "cut-out" figures, including those of a clown, a dancing elephant, a robot, and a teddy bear. The concurrence concluded that both because the creche is "a traditional symbol" of Christmas, a holiday with strong secular elements, and because the creche was "displayed along with purely secular symbols," the creche's setting "changes what viewers may fairly understand to be the purpose of the display" and "negates any message of endorsement" of "the Christian beliefs represented by the creche."

But whether a Nativity display stands alone or is accompanied by a sufficient number of elves and talking wishing wells, why should we think that it endorses religion rather than merely recognizing that a subgroup in the community is celebrating a special holiday?

Here is what I say in my article about all this:

In County of Allegheny v. American Civil Liberties Union,[1] the Supreme Court was asked to decide whether a Christmas display located on public property in Pittsburgh violated the incorporated Establishment Clause. The challenged display was a nativity scene that depicted “the infant Jesus, Mary, Joseph, farm animals, shepherds, and wise men, all placed in or before a wooden representation of a manger, which has at its crest an angel bearing a banner that proclaims ‘Gloria in Excelsis Deo?’”[2] This display was placed on the Grand Staircase of the Allegheny County Courthouse.[3] The Court applied the endorsement test and held that the Nativity Scene was an unconstitutional endorsement of “a patently Christian message: Glory to God for the birth of Jesus Christ.”[4]

But who was harmed by this passive recognition that Christmas is a special season for many residents of Pittsburgh and Allegheny County? Whose liberty was restricted by the mere placement of this display on the staircase of a public building? Justice O’Connor argued that the Christmas display was harmful because it conveyed “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 political community.”[5]

But why should we think this is so? If we consider the Christmas display, together with all the other displays and expressions in the public culture of Pittsburgh over the course of any given year, why isn’t the message merely one of inclusion and recognition that the community is composed of many equally valued subgroups who celebrate many different holidays and ideas? For example, if Pittsburgh were to display a poster celebrating Cinco de Mayo in the Grand Staircase of the courthouse would Justice O’Connor perceive this as endorsing a message that Latinos were favored members of the political community and non-Latinos were of second class status in the community? When a public school celebrates Black History Month, should Asians or Latinos view the celebration as sending a message of favored and disfavored racial or ethnic status? Does a Gay Pride poster in a public school send a message of favored and disfavored membership in the political community? Or should all of these passive displays be viewed as government merely recognizing that it represents a pluralistic society, one composed of many equally-valued subgroups. There is nothing wrong or harmful when government creates a public culture that recognizes the rich religious, ethnic, racial, and cultural diversity of the community it represents.

                Indeed, it might be more reasonable to view the religious cleansing of Pittsburgh’s public culture pursuant to the Court’s decree in Allegheny County as endorsing a message of disapproval of religion. Certainly Justice Kennedy interpreted the Court’s strict separationist view of the Establishment Clause as reflecting “an unjustified hostility toward religion.”[6] As Kevin Seamus Hasson observes, if religious displays are cleansed from a public culture open to a vast multitude of nonreligious displays, the resulting message is not one that is neutral toward religion:

It’s impossible for the government to be silent on religion in culture because its silence itself speaks volumes. If the government were uninvolved in our culture generally, there would be no problem with it being uninvolved in our religious expression. But it’s not uninvolved at all. The government is a major force in the culture. It celebrates everything from National Catfish Day to National Jukebox Week. It proclaims national holidays to commemorate a wide variety of things, from Thanksgiving to Memorial Day to Martin Luther King Day. It runs a comprehensive public school system that purports to teach children what they need to know about everything from literature to sex. It provides public universities that not only educate in the arts, but are a major venue for their performance and display, as well as a formidable intellectual force in the debate about them. And the government’s reach extends even further. It actually underwrites the arts of its choosing. Taken together, the government-run educational system, its subsidy of the arts, its proclamation of holidays all combine to create a cultural force of seismic proportions.[7]

Moreover, as Steven Smith notes, “alienation produced by Supreme Court decisions may be even more severe than alienation provoked by actions of legislatures or lower government officials.”[8] This is so, because when the Supreme Court cleanses religion from the public culture in the name of the Constitution, it sends a message to people of faith that “their central beliefs and values are incompatible with the fundamental and enduring principles upon which the Republic rests.”[9]

It seems clear that if the Court were truly concerned about religious liberty under the incorporated Establishment Clause, it would not allow offended observers the right to censor this harmless, passive nativity display from the public square. In Allegheny County, the Court applied the Establishment Clause not to advance anyone’s religious liberty,[10] but rather to grant one group of citizens the power to deprive another group of citizens an opportunity to view and enjoy the nativity display. In other words, as Justice Kennedy correctly observed, the Court in County of Allegheny actually created a heckler’s veto pursuant to which the Court, at the request of offended observers, acted “as a censor, issuing national decrees as to what is orthodox and what is not.”[11]

Thoughts?

---

[1] 492 U.S. 573 (1989).

[2] Id. at 580.

[3] Id. at 578.

[4] Id. at 601.

[5] Id. at 626 (O’Connor, J., concurring).

[6] Id. at 655 (Kennedy, J., concurring in part and dissenting in part).

[7] Hasson, supra note 101, at 128.

[8] Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 311 (1987).

[9] Id.

[10] As Justice Kennedy emphasized, Pittsburgh’s Nativity Display was merely “passive and symbolic” and offended observers were free to “ignore” it, to avert their eyes from it, “or even to turn their backs” to it. Allegheny County, supra, 492 U.S. at 662, 664 (Kennedy, J., concurring in part and dissenting in part).

[11] Id. at 678.

The Endorsement Test is Completely Subjective

 Notice how Justice Blackmun interpreted the menorah display, which the Court upheld. This display involved a "memorah...standing next to a Christmas tree and a sign saluting liberty." Would a reasonable observer view this display as an endorsement of religion? 

Justice Blackmun, assuming the role of reasonable observer, says don't worry, it is perfectly copacetic:

 In these circumstances, then, the combination of the tree and the menorah communicates, not a simultaneous endorsement of both the Christian and Jewish faiths, but instead, a secular celebration of Christmas coupled with an acknowledgment of Chanukah as a contemporaneous alternative tradition.

Although the city has used a symbol with religious meaning as its representation of Chanukah, this is not a case in which the city has reasonable alternatives that are less religious in nature. It is difficult to imagine a predominantly secular symbol of Chanukah that the city could place next to its Christmas tree.....

The mayor's sign further diminishes the possibility that the tree and the menorah will be interpreted as a dual endorsement of Christianity and Judaism. The sign states that during the holiday season the city salutes liberty.... Here, the mayor's sign serves to confirm what the context already reveals: that the display of the menorah is not an endorsement of religious faith but simply a recognition of cultural diversity. 

 

Would the average Pittsburgher say to his friends and fellow Steeler fans, "hey, yinz, take a look at that great recognition of cultural diversity over der"? Justices Brennan, Marshall, and Stevens view the Chanukah display as an endorsement of Judaism. The endorsement test is completely subjective, like the art of interior decoration. Everyone has a different opinion of the message conveyed by any particular holiday display.

Now consider Justice Kennedy's dissent:

There is no suggestion here that the government's power to coerce has been used to further the interests of Christianity or Judaism in any way. No one was compelled to observe or participate in any religious ceremony or activity. Neither the city nor the county contributed significant amounts of tax money to serve the cause of one religious faith. The creche and the menorah are purely passive symbols of religious holidays. Passersby who disagree with the message conveyed by these displays are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech....

Our role is enforcement of a written Constitution. In my view, the principles of the Establishment Clause and our Nation's historic traditions of diversity and pluralism allow communities to make reasonable judgments respecting the accommodation or acknowledgment of holidays with both cultural and religious aspects. No constitutional violation occurs when they do so by displaying a symbol of the holiday's religious origins.  

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 Month.” 

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?

Santa Fe Case

Although there was a history of various types of school prayer in this school district, this case concerns a school policy that allowed students to vote on whether to allow a student to deliver a message, statement or invocation at home football games. P.1774

The issue in this case is whether pregame invocations are speech attributed to the government which is prohibited by the EC, or private student speech which is protected by the Free Speech and Free Exercise Clauses. See p. 1774  “crucial difference....”

How much government involvement do we have here?

‒ School has set up an election process to determine whether a student elected by her classmates may deliver a "message, statement, or invocation" before varsity football games.

‒ Student chosen by the majority gets preferred access to public address system and an audience that has come to participate in a school activity.

‒ The policy “invites and encourages” religious messages. (p. 1776). How so? By whom? So what? Liberty interest?

- In this context, the audience at football games “must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration.” (p. 1776) So what?

‒ endorsement of religion

‒ School sponsorship of a religious message is impermissible. Why? See P. 1776:

"School sponsorship of a religious message is impermissible because it sends the
ancillary message to members of the audience who are nonadherents 'that they are
outsiders, not full members of the political community, and an accompanying message
to adherents that they are insiders, favored members of the political community.'”

What message does the Court's censorship of religious speech send to students whose faith is an important part of their identity?

– government may not use social pressure (to attend a football game) to enforce religious orthodoxy. (p.1777) What social pressure? What religious orthodoxy?


What actually happened at the games? Was any prayer ever said under this policy?

Notice the Court strikes down the policy under a facial challenge, because the purpose of the policy violated the EC – its purpose was to endorse student prayer at football games. (p. 1778).

Why should we think that the school's permitting students to elect a student speaker amounts to an endorsement of religion? Why not view it as an endorsement of the democratic process and of student expression?

Prof. Kavanaugh's Black Letter EC Formulation

 As we leave the Establishment Clause behind, you should keep in my Justice ("Professor") Kavanaugh's summary of the current EC doctrine from his concurrence in American Legion:

"[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. . . ." Casebook p. 1808

ZORACH V. CLAUSON (p. 1769)

Released time programs.  Upon written request by parents, school allows students to be released early from school to “go to religious centers for religious instruction or devotional exercises.”  The program involved only 1 hour per week.  343 U.S. at 308. Students were only released upon written request of parents. 

Does this violate the Establishment Clause?

Notice in McCollum the Court struck down a released time program which allowed religious teachers to come into the public schools to provide religious instruction to students whose parents requested such instruction. P. 1770

    What do you think about that kind of program? Is it different in a significant way from the program in Zorach? 

Lemon Test

 

 

 The “Three-Part Lemon Test”
In cases decided after 1971, it is common to begin opinions concerning the
establishment clause by reciting standards summarized in Chief Justice Burger’s opinion for the Court in Lemon v. Kurtzman, 403 U.S. 602, 612–613 (1971). To be valid against attack under the Establishment Clause:

 “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ”

Despite their apparent simplicity, the three “Lemon standards”—which will be examined time and again in the cases to follow—have substantial ambiguities and remain controversial. --Casebook p. 1768

 

 Under the Lemon test, government may not advance or inhibit religion.

If we take this test seriously, and apply the no inhibition rule with the same enthusiasm as the no advancement rule, where would we end up?

What kinds of governmental laws, activities, and policies have the effect of inhibiting religion?

What are your thoughts?

 

Purpose Prong

 

Consider the following examples under the Lemon test.

Assume that back in the 1960s, the state legislature of Nebraska has had a religious experience after listening to a sermon on race and poverty delivered by the Rev. Martin Luther King. Convinced that Jesus would be pleased if it took action, the Nebraska legislature states that "for the purpose of obeying the commands of Christ to love our neighbor as we love ourselves and to help the poor and the oppressed," it legislates a law outlawing discrimination on the basis of race in places of public accommodation and a law providing health care to children from non-affluent families.

Are these laws facially unconstitutional under the Lemon test? Is it wrong for a state legislature to pass laws helping those in need of help if they are primarily motivated by their religious convictions?


By the way, MLK had a lot to say about justice and the law, a topic he engaged forcefully in his historic "Letter from Birmingham City Jail," an open letter, dated 16 April 1963, to "My dear Fellow Clergymen" designed to explain Dr. King's decision to engage in peaceful acts of civil disobedience. Here is an excerpt in which he explains the difference between a "just" law and an "unjust law":

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer is found in the fact that there are two types of laws: there are just and there are unjust laws. I would agree with Saint Augustine that "An unjust law is no law at all"

Now what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority, and the segregated a false sense of inferiority. To use the words of Martin Buber, the great Jewish philosopher, segregation substitutes an "I-it" relationship for the "I-thou" relationship, and ends up relegating persons to the status of things. So segregation is not only politically, economically and sociologically unsound, but it is morally wrong and sinful. Paul Tillich has said that sin is separation. Isn't segregation an existential expression of man's tragic separation, an expression of his awful estrangement, his terrible sinfulness? So I can urge men to disobey segregation ordinances because they are morally wrong.

What do you think? Are Dr. King's views about justice more or less persuasive because of the clear religious source of his understanding of just and unjust laws? If the Government acts based upon MLK's notion of just laws, would it violate the Establishment Clause?

First Amendment Fall 2025 First Week Coverage

 Welcome to the First Amendment course, a course that examines the First Amendment in quite a bit of depth.

For our first two classes of First Amendment, please read the assignment noted below (Casebook: Varat, Amar & Caminker Constitutional Law (16th Edition)(Foundation Press 2021). The first unit will get us through Monday. We will finish the first unit and cover the second unit on Tuesday and Wednesday:

 --   Dreisbach  article; Casebook p. 1763-1779; Read (as a Preview) Stephanie Barclay's article The Religion Clauses After Kennedy v. Bremerton School District (free download here):

-- Engel v. Vitale (Link).;Allegheny County case (link); Stone v Graham, 449 U.S. 39 (1980) (get PDF from Hein on Line); Kennedy case (link); Our class discussion will focus primarily on: the American Legion case p. 1801-1812 and on the Kennedy case and Stone v Graham.  Louisiana just passed a law requiring the 10 Commandments to be displayed in public school classrooms. Does the Kennedy case change the outcome of Stone v. Graham?

 
You should also watch the first four First Amendment videos (the first two relate to class 1; three and four relate to class 2 and 3):

Video Number One 

Video Number Two 

Video Number Three 

Video Number Four

 Students have told me that they find this recorded sessions very helpful. We will discuss these issues in class on Monday, Tuesday and Wednesday.

 

 

Blog Posts: Week One First Amendment Fall 2025 Part One

 Handful of Words

Does the Constitution Require Separation of Church and State?

 

https://professorduncan.blogspot.com/2015/01/jeffersons-wall-of-separation.html

 

Establishment Clause Prior to Everson

 

Incorporation

 

Neutrality

 

Everson and Neutrality 

 

Justice Rutledge in Everson

Links to Blog Posts for First Amendment Fall 2025 Week One Part Two

 https://professorduncan.blogspot.com/2006/07/for-todays-class-zorach-hypos.html

 https://professorduncan.blogspot.com/2006/07/zorach-question.html

https://professorduncan.blogspot.com/2008/01/lemon-test-secular-purpose-prong.html 

https://professorduncan.blogspot.com/2007/07/lemons-purpose-test.html 

https://professorduncan.blogspot.com/2006/07/advance-or-inhibit.html 

 https://professorduncan.blogspot.com/2014/01/the-case-of-devout-valdictorian.html

 https://professorduncan.blogspot.com/2007/07/kosher-food-stamps.html

https://professorduncan.blogspot.com/2021/01/france-prohibits-veils-in-public-schools.html 

 

Church, State and the Constitution

As we begin our discussion of the Establishment Clause, I want you to journey back into the recesses of time, back to the days before you were a law student. Go back to your high school and college days, perhaps, and ask yourself "what was the story I was taught about the role of religion in the public square."

Maybe you were told this story in high school, or college. Somewhere you were discussing the subject of, say, a Ten Commandments display in a public park in Corny, Nebraska, and some teacher or speaker told you the story of what the First Amendment says about "church and state."

Think about that story and be prepared to share it with the class.

Everson and Taxpayer Standing

Suppose a City provides free bus transportation for residents with health care appointments. And suppose John Doe, a city taxpayer, sues to enjoin the program because it pays for transportation to all medical appointments including for women seeking abortion services. Doe claims that subsidizing abortion through his tax payments violates his religious beliefs and asks the federal court to enjoin free bus rides for those seeking abortions.

How should this case come out?

Suppose instead the City uses tax dollars to actually pay for abortions for low income women. Now should Doe be allowed to enjoin these expenditures as violating his free exercise of religion (by requiring him to facilitate through his tax payments that which his religion forbids him to facilitate)?

Now consider Prof. Steven Smith's discussion of "taxpayer" injuries and the EC:

                 As a general matter, the Supreme Court has refused to recognize payment of taxes as a cognizable injury; forced payment of taxes to be used in part for purposes that a taxpayer believes to be objectionable or even unconstitutional does not even give a person standing to sue. However, the Court’s zeal for a no establishment principle has led it to create a special exception allowing objecting taxpayers to sue when government subsidizes religion.

                This exceptional treatment is difficult to justify on the basis of a realistic and prudential approach to religious freedom. It is true, of course, that payment of taxes to support causes one does not favor is in some sense a very real harm; the taxpayer is poorer, and she may be offended as well. But a taxpayer suffers these kinds of injuries whether the objectionable use of public money aids religion or not. So how is this sort of injury, normally not even cognizable, transformed into a violation of the taxpayer’s religious freedom?

                The lazy answer would simply define religious freedom to include a right not to contribute to any cause that may have the effect of aiding religion. But that answer is too easy; indeed, it is patently circular, attempting to settle the issue by definitional fiat.

                A less question-begging, more realistic approach might start by distinguishing between a taxpayer’s religious objection-an objection, that is, arising out of religious commitments or beliefs-to supporting a particular public project, on the one hand, and on the other hand a taxpayer’s objection, however grounded, to the religious use of tax dollars, or a to a use that benefits religion. The first kind of objection might plausibly be characterized as implicating the taxpayer’s religious freedom insofar as she is being forced to act in contravention of, or at least to support something that is contrary to, her religious commitments. By contrast, the injury in the second situation, though real enough, seems more comparable to ordinary taxpayer injury. Thus, a Quaker who sincerely opposes the use of public money to support an undeclared war in Vietnam and an atheist who sincerely opposes the use of public money to support parochial schools both suffer real harm. But the atheist, unlike the Quaker, cannot as plausibly say that his harm consists in being forced to act contrary to his religious convictions (unless, that is, he tacitly imports an extremely loose definition of “religion” that for many other purposes he, and we, would probably be unable to embrace).

                Ironically, however, in the kind of case where tax payment might plausibly be described as a violation of religious commitments, and hence perhaps of religious freedom, current law does not recognize the injury. Thus, the atheist’s claim would likely be treated as presenting a religious freedom problem, while the Quaker’s harm is probably not even a cognizable injury sufficient to confer standing to sue. Measured against a realistic appraisal of harm to religious freedom, current law seems topsy-turvy.

There are obvious difficulties, of course, in granting constitutional status to every religion-based objection to the use of public money. So my claim here is a modest one: I suggest only that if payment of taxes for what may be unconstitutional purposes is not normally a harm recognized by the law, then there is no reason why it should be given special status in this context merely because the nature of a particular taxpayer’s objection is that the expenditure will have the effect of aiding religion.

                This conclusion would have important consequences for what is probably the most persistent, and in a material sense most important, church-state controversy: aid to parochial schools (including many of the voucher programs that seem to enjoy growing political support). Once we recognize that advancement of religion is not an evil per se, and that there is no better reason to recognize taxpayer injury here than in other contexts, it follows that aid to parochial schools is no different from state aid to Chrysler Corporation, or the Shah of Iran, or the family farm, or the National Endowment for the Arts, or a host of other controversial causes and interests. Many people sincerely object often on entirely plausible grounds of self-interest or political principle or moral scruples to any of these grants of aid. But our working assumption has been that if government concludes that such aid will serve the public interest, the courts have no call to intervene. And there is no good reason to treat parochial schools differently.

Everson Summary from Oyez

 

 From Oyez:

Facts of the case

A New Jersey law authorized reimbursement by local school boards of the costs of transportation to and from schools, including private schools. 96% of the private schools who benefitted from this law were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion violated both the New Jersey state constitution and the First Amendment. After losing in state courts, Everson appealed to the U.S. Supreme Court on purely federal constitutional grounds.

Question

Did the New Jersey statute violate the Establishment Clause of the First Amendment?

Conclusion

A divided Court held that the law did not violate the Constitution. Justice Black reasoned that the law did not pay money to parochial schools, nor did it support them directly in anyway. It was rather enacted to assist parents of all religions with getting their children to school.

Justices Jackson, Frankfurter, Rutledge, and Burton dissented.  

 

The problem with Everson is not its holding concerning the bus subsidy. There are two problems:

1. The incorporation decision made by assertion without any analysis of the relevant issues.

2. Justice Black's use of the Wall of Separation Between Church and State metaphor, a phrase that is found nowhere in the text of the First Amendment. 

 

 

Do You "Feel" or "Think" About Legal Issues

 "Using 'feel' instead of 'think' is a sign that feeling is doing more work than thinking." --Ed Whelan

Louisiana Law Requires Display of Ten Commandments in Public Schools

 Here is a short article explaining the law: 

And here is a quotation from the article:

"The legislation requires that by January 1, 2025, all K-12 public schools, charter schools, and state post-secondary institutions place in their classrooms a poster-size copy of the Ten Commandments (“10Cs”). The 10Cs are to be displayed along with a three-paragraph “context statement” situating the commandments as part of the American educational experience for almost three centuries."

 Is this new law constitutional under the current Supreme Court test for the Establishment Clause?

 

From AP:

New Texas law will require Ten Commandments to be posted in every public school classroom

By  JIM VERTUNO

Updated 7:16 PM CDT, June 21, 2025

AUSTIN, Texas (AP) — Texas will require all public school classrooms to display the Ten Commandments under a new law that will make the state the nation’s largest to attempt to impose such a mandate.

Gov. Greg Abbott announced Saturday that he signed the bill, which is expected to draw a legal challenge from critics who consider it an unconstitutional violation of the separation of church and state.

A similar law in Louisiana was blocked when a federal appeals court ruled Friday that it was unconstitutional. Arkansas also has a similar law that has been challenged in federal court.

The Texas measure easily passed in the Republican-controlled state House and Senate in the legislative session that ended June 2.

“The focus of this bill is to look at what is historically important to our nation educationally and judicially,” Republican state representative Candy Noble, a co-sponsor of the bill, said when it passed the House.

 

From Religion Clause blog: 

 Suit Challenges Texas Requirement for 10 Commandments in Classrooms 

Suit was filed last week in a Texas federal district court challenging the constitutionality of a recently enacted Texas law that requires the display of the Ten Commandments in every public-school classroom. The complaint (full text) in Alexander v. Morath, (ND TX, filed 6/24/2025) alleges in part:

Senate Bill 10 ... is not religiously neutral, as it mandates the display of a specific version of the Ten Commandments in every public-school classroom. This requirement inherently takes a theological stance on the correct content and meaning of the scripture....

The version mandated by S.B. 10 mostly aligns with a Protestant rendition but does not match any version found in the Jewish tradition, notably omitting key language and context from the Torah. Furthermore, it does not match the version followed by most Catholics, as it includes a prohibition against "graven images" which could be offensive given the role of iconography in the Catholic faith....

84. As a result of the Ten Commandments displays mandated by S.B. 10, Texas students—including minor-child Plaintiffs—will be unconstitutionally coerced into religious observance, veneration, and adoption of the state’s favored religious scripture, and they will be pressured to suppress their personal religious beliefs and practices, especially in school, to avoid the potential disfavor, reproach, and/or disapproval of school officials and/or their peers. ...

85. In addition, by mandating that one version of the Ten Commandments be displayed in public educational institutions and prescribing an official religious text for school children to venerate, S.B. 10 adopts an official position on religious matters, violating the Establishment Clause’s prohibition against taking sides in questions over theological doctrine and violating the “clearest command” of the Establishment Clause that “one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).

86. There is no longstanding historical practice or tradition of prominently and permanently displaying any version of the Ten Commandments in American public-school classrooms. On the contrary, the Supreme Court unambiguously held in Stone that such a practice is proscribed by the Constitution.

Texas Tribune reports on the lawsuit.