A Wall of Separation – Lee v. Weisman (1992)

November 6, 2016June 4, 2023 ~ Blue Cereal

Graduation ceremonies provide an interesting dilemma when it comes to questions of church-state separation. They are inherently connected to public schooling and school officials, and participating students are largely accountable to those authorities during the event. At the same time, they often take place outside of school hours and off school grounds, and are in most cases technically voluntary – students need not attend in order to graduate.

So are they bound by the same restrictions established in Engel and Abington and clarified by Wallace and other subsequent decisions? The short answer is yeah, they pretty much are.

In 1989, a middle school principle named Robert Lee in Providence, Rhode Island selected a local Rabbi to deliver prayers at a middle school graduation ceremony – which I guess is a thing in some places. Lee gave the Rabbi a pamphlet called “Guidelines for Civic Occasions,” which provided tips on “inclusiveness and sensitivity” and encouraged “non-sectarian” prayers.

Lee’s intentions were clearly good. The Rabbi followed the protocols. The same basic scenario was repeated annually across the state at both middle and high school events.

Daniel Weisman, a parent, objected to prayers of any sort being an official part of the ceremony. His concerns were overruled, and the Rabbi delivered a very nice benediction. Weisman took his case to the federal courts claiming this amounted to “establishment” and was thus unconstitutional.

The federal district court applied the “Lemon Test” and agreed. The First Circuit Court of Appeals followed suit. Finally, in Lee v. Weisman (1992), the Supreme Court in a 5-4 decision confirmed the lower courts – you can’t do that.

Justice Anthony Kennedy wrote the Majority Opinion. I’ll try to limit myself to the highlights…

The school board… argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of our people ought to be expressed at an event as important in life as a graduation…
Daniel Weisman filed an amended complaint seeking a permanent injunction barring petitioners, various officials of the Providence public schools, from inviting the clergy to deliver invocations and benedictions at future graduations… {A} a live and justiciable controversy is before us…

I kept that last bit because it’s fun to try to pronounce “justiciable.” Go ahead, try it a few times. Justishubble… JUST-is-a-bull… a LIVE and JUSTshibble controversy!

This is one of those awkward moments that I’m the only one having fun, isn’t it?

The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman (1971). Under that test as described in our past cases, to satisfy the Establishment Clause a governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion…

There it is again – that zany ol’ Lemon Test. You should be getting used to it by now.

The court determined that the practice of including invocations and benedictions, even so-called nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion, and violates the Establishment Clause…

Kennedy eventually addresses some of the arguments made in defense of graduation prayer:

State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma…

In other words, just as in Wallace v. Jaffree (1985), calling something “voluntary” doesn’t change all of the rules when it comes to minors and government coercion. He’ll come back to this theme later.

Kennedy then addresses the suggestion that prohibiting the state-sponsored prayer in some way interferes with the “free exercise” of those desiring its inclusion.

For those of you just tuning in, the First Amendment opens with not one, but two ‘freedom of religion’ clauses – the “establishment clause” (government can’t do anything to promote or encourage a particular religion) and the “free exercise clause” (government can’t do anything to discourage or limit a particular religion.) Government “neutrality” sounds pretty straightforward, but in practice these two goals are often in tension with one another.

The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise…
The State’s involvement in the school prayers challenged today… is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State…

He continues, but the point is there were clearly a series of decisions made by adult representatives of the state which established required religious ceremonies for minors. The fact that the authorities in question made a good-faith effort to be as inclusive as possible doesn’t negate this reality.

Here’s a section I really like:

The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State…

Just because you’re being all justiciable doesn’t mean you can’t keep it catchy, right?

It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference.
James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: “{E}xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation”…

This echoes a theme found in Engel and similar cases since – that government entanglement in religion is not only bad for those of other faiths, but it’s bad for the entangled faith as well. Cooperation between church and secular authority rarely ends well for either church or state.

Kennedy elaborates on other legalities before addressing my favorite argument by defenders of the prayers – that the world isn’t always going to cater to your weird beliefs or other druthers, so you’d better get used to it.

To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And tolerance presupposes some mutuality of obligation. It is argued that our constitutional vision of a free society requires confidence in our own ability to accept or reject ideas of which we do not approve, and that prayer at a high school graduation does nothing more than offer a choice.

The actual case in question is a ‘middle school’ ceremony of some sort, but the Court had earlier acknowledged it was collectively addressing all varieties of such ceremonies.

By the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief, formal prayer ceremony that the school offers in return. This argument cannot prevail, however. It overlooks a fundamental dynamic of the Constitution.

In other words, one might make an interesting argument that this is part of the educational process… but they’d be wrong. Or so Kennedy explains:

The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own…
The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all.

Free speech, then, may often include the individual trying to persuade the government, or the government reasoning with or compelling the individual. Matters of faith, on the other hand, do not require the government’s approval or cooperation – nor should they be shaped by the whims of the state. Secular authority too easily throws the spiritual into the same blender as the mundane and vulgar, then hits “puree.” And that’s when it has good intentions.

Kennedy comes back to the question of whether or not students participating in the ceremony are being coerced into demonstrating support for beliefs contrary to their own. This part is going to provoke quite a backlash from the dissenting Justices, so sit up straight and pay attention, kids!

The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion.
Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real.
There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation…

Let’s skip for a moment to Justice Scalia’s dissent on this particular piece of the argument. “Dissent” is probably too mild – it’s really more of an eruption of disdain.

The Court declares that students’ “attendance and participation… are in a fair and real sense obligatory.” But what exactly is this “fair and real sense”? According to the Court, students at graduation who want “to avoid the fact or appearance of participation” in the invocation and benediction are psychologically obligated by “public pressure, as well as peer pressure… to stand as a group or, at least, maintain respectful silence” during those prayers…
This assertion – the very linchpin of the Court’s opinion – is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Durer-like prayer position, pay attention to the prayers, utter “Amen,” or in fact pray. (Perhaps further intensive psychological research remains to be done on these matters)…

Is that… sarcasm pouring forth from a pen of the Divine Nine?

The Court’s notion that a student who simply sits in “respectful silence” during the invocation and benediction (when all others are standing) has somehow joined – or would somehow be perceived as having joined in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely “our social conventions” have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence…

Stuff like this is why Scalia’s loss was so devastating, whatever one’s politics. This is glorious dissent.

But let us assume the very worst, that the nonparticipating graduate is “subtly coerced” … to stand! …
{M}aintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate – so that even if it were the case that the displaying of such respect might be mistaken for taking part in the prayer, I would deny that the dissenter’s interest in avoiding even the false appearance of participation constitutionally trumps the government’s interest in fostering respect for religion generally.

Clearly Scalia and the three other Justices who signed off on this dissent are NOT impressed by the Court’s decision. Their outrage is both palpable and a tad pissy.

But back to the majority opinion…

Kennedy proceeds to address the state’s argument that these are harmless little ceremonial prayers, not enough to constitute “establishment.” He finds this contradicts the state’s own arguments regarding the importance of prayer. Kennedy cycles through several of his points again with renewed vigor before hitting his home stretch with a somewhat defensive denouement too long to reproduce here. Well, except for this bit:

Our jurisprudence in this area is of necessity one of line-drawing, of determining at what point a dissenter’s rights of religious freedom are infringed by the State…

“Look! We have to draw the lines somewhere, OK?! This isn’t an exact science, we’re talking about real people and some rather complicated situations, so just back off, haters!”

OK, maybe I’m over-interpreting his tone here.

And he’s not wrong. A review of related jurisprudence over the previous half-century certainly confirms his suggestion that such lines can be tricky. The Court is seeking balance, which sometimes means a frustrating lack of predictability.

As suggested earlier, Justice Scalia’s dissent really deserves a post of its own, but I’ll limit myself to a few brief excerpts, with minimal commentary. But, oh my – Antonin!

{Today’s opinion} is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court – with nary a mention that it is doing so – lays waste a tradition that is as old as public school graduation ceremonies themselves, and… an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.

This is the case most likely to be made when pushing one’s own version of faith into the public sphere – tradition and history. It’s Christianity’s strongest claim to why it should be treated differently than other faiths – although they’ll never quite come out and put it that way. It’s effective because there’s truth in it – it’s a mistake to try to tease out every last thread of spirituality in our history and culture for fear we’re not being “neutral” enough.

Hmm… I guess that’s more than “minimal commentary.” Sorry.

As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion… Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people…
The Court’s argument that state officials have “coerced” students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.

So… I’m thinking he disagrees on this one.

The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, and the interment of that case may be the one happy byproduct of the Court’s otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psycho-coercion test, which suffers the double disability of having no roots whatever in our people’s historic practice, and being as infinitely expandable as the reasons for psychotherapy itself…

Despite the rhetorical spittle flinging everywhere, Scalia concludes with strong, slightly less bitter, words:

The reader has been told much in this case about the personal interest of Mr. Weisman and his daughter, and very little about the personal interests on the other side. They are not inconsequential. Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room…

I didn’t say they weren’t bitter – just that they were slightly less so than before.

Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the “protection of divine Providence,” as the Declaration of Independence put it, not just for individuals but for societies… One can believe in the effectiveness of such public worship, or one can deprecate and deride it. But the longstanding American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it…
I must add one final observation: The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration – no, an affection – for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily… To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law.

And with that, we move on.

RELATED POST: A Wall of Separation – Wallace v. Jaffree (1985)

A Wall of Separation – The Ten Commandments (Part Two)

November 4, 2016June 4, 2023 ~ Blue Cereal

In a few days, Oklahoma will vote on whether or not to repeal the ‘Blaine Amendment’ in our state constitution by passing SQ 790. The proclaimed goal of the change is to allow the posting of the Ten Commandments on public grounds. Is it constitutional for government to make this happen? What if they merely allow it to happen? Is it constitutional for them to prohibit it if someone else wants it to happen?

Turns out the answers are a bit messy.

In Stone v. Graham (1980), it was determined that schools could not post the Ten Commandments or other religious materials in classrooms without historical or other pedagogical context – even if the materials were paid for by private money. Then again, that’s school – not the State Capitol.

In 2003, Alabama and Tennessee handled debates over the Ten Commandments in government offices by either firing the offender (Alabama) or moving the display to a slightly more private location, although still on government property (Tennessee). Neither situation reached the Supreme Court.

It was in 2005, though, that things got really interesting. On the same day, the Supreme Court announced its decisions in both McCreary County v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005) – both cases involving the Commandments on public land. While Kentucky’s displays were determined to be unconstitutional, the monument in Texas was acceptable. Both were split decisions, and the difference came down to context – both the displays themselves and the history behind them – and intent.

That’s where we left off last time. And now… now things get even murkier.

The little town of Pleasant Grove, Utah, allowed privately donated displays in its public park. Among the items placed there as of 2008 was a monument of the Ten Commandments – donated by that same Fraternal Order of Eagles group we met in Van Orden. The problem in this case didn’t stem from anyone’s request to remove the Commandments – quite the opposite. Instead, another faith wished to place their own monument in the park as well.

Summum is a faith and/or philosophy which originated in the 1970s, although it draws on ideas and sources from ancient times. It’s built around the Seven Aphorisms in the same way one might argue Judeo-Christian traditions are anchored in the Ten Commandments. According to Summum teaching, Moses was given these Seven Aphorisms by God on Mount Sinai, engraved on twin tablets. The Israelites were not ready, however, and Moses smashed the originals in frustration.

Moses returned with a second set of tablets, this time inscribed with “lower laws” which were more readily understood. These were the Ten Commandments, basic guidelines providing a starting place for the Israelites to grow and develop themselves.

Side Note: Summum produces a “spiritual nectar” – wine, by worldly legal definitions – infused with various “resonations” to help absorb spiritual concepts. Each variation contains a different concept, so followers consume whichever nectar corresponds to the truth they’re seeking that day. Presumably, it helps loosen up one’s understanding.

I, for one, find this a brilliant addition to any theology. They also have this thing about mummifying yourself and your pets after death which I’m much less excited about, but perhaps with enough “enlightenment nectar”…

In any case, the Summum church wanted to place a monument of the Seven Aphorisms in the park. They thought it would make a nice companion piece to the Ten Commandments already there. The city of Pleasant Grove disagreed. The mayor denied Summum’s request because the monument did not “directly relate to the history of Pleasant Grove.”

So here’s the question – is Pleasant Grove constitutionally required to accept all religious monuments if it accepts any religious monuments?

The Summum convinced the 10th Circuit Court of Appeals that it was. This decision was overturned when the case reached the Supremes, but it’s worth noting the initial leanings of the Circuit Court whose purview includes Oklahoma.

Of course, lower courts generally defer to decisions from higher courts – that is, after all, the whole idea – and the 10th will no doubt follow the lead of the Supreme Court if they think the case before them is comparable to something previously decided. But if there are critical differences in the details – and there are almost always critical differences in the details – things might easily go the other way.

The Supreme Court found that Pleasant Grove had a right to decide what was and wasn’t posted in its park – there was no “establishment” or “free exercise” issue. The decision was unanimous, but in addition to the majority opinion there were four separate concurring opinions submitted. This suggests that while the outcome was clear, the reasons behind it were varied. That matters the next time a similar case comes up – the results might depend on those critical details we just mentioned.

The majority opinion in Pleasant Grove v. Summum (2009) went something like this…

The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

A government entity is entitled to say what it wishes and to select the views that it wants to express. It may exercise this same freedom when it receives private assistance for the purpose of delivering a government-controlled message. This does not mean that there are no restraints on government speech, but neither do they have to send messages which don’t represent their views.

Here, the Park’s monuments clearly represent government speech. Although donated, the City has “effectively controlled” their messages by selecting monuments that present the image that the City wishes to project to visitors; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument; and it has expressly set out selection criteria.

A park is different from a forum at which many different speakers might represent many different viewpoints. Monuments are also different than holiday displays or temporary demonstrations favoring one belief or idea over another. The city has a right – within reason – to determine what’s appropriate for a permanent installation. If anyone can place any message in the park, it will soon be all messages and no park.

Point of Interest: The Summum tried to put up the same monument in a different city – Duchesne, Utah. In Duchesne, there was only one monument in the park – the Ten Commandments. After the decision in Pleasant Grove, Duchesne realized that they would be unable to refuse the Summum. An assortment of statues may be cultural and historical, but a single monument is “establishment of religion.”

They relocated the Ten Commandments to avoid the lawsuit.

There was one other case of interest in 2009 which involved a display of the Ten Commandments. This one never made it to the Supreme Court, but was decided by that same 10th Circuit Court mentioned above.

Haskell County, Oklahoma, had a Ten Commandments monument on their Courthouse lawn, along with several pieces honoring military veterans of various wars. James Green, a local resident, believed the monument violated the separation of church and state. With the help of the ACLU, he sued to have the monument removed.

The 10th Circuit Court of Appeals ruled in favor of Green. Haskell county commissioners appealed the decision, but the Supreme Court of the United States declined to hear the case. When that happens, the decision of the lower court stands.

In other words, during the same year the Highest Court was confirming Pleasant Grove’s right to pick and choose park displays, it was perfectly comfortable with Haskell County being forced to move their copy of the Ten Commandments.

I might have mentioned earlier how often the difference is in the details…

The Haskell monument was moved to the lawn of the American Legion, only a few feet away from the courthouse, where it remains today. Much like the graven image at the OCPA, within throwing distance of the State Capitol, anyone wishing to view the Ten Commandments can easily do so within easy reach of government land – just not ON that government land.

There’s one last case, from only a few years ago.

The city of Bloomfield, New Mexico, allowed the installation of a ginormous Ten Commandments monument on the front lawn of City Hall. While technically funded by private money, the proposal and oversite were the work of Kevin Mauzy, a member of the City Council.

Two locals objected to the monument as a government endorsement of religion and sued. The 10th Circuit Court of Appeals confessed the issue was somewhat tricky in light of McCreary County v. ACLU of Kentucky (2005), Van Orden v. Perry (2005), and other related precedents. In the end, however, the monument was ordered to be removed.

It’s possible that Felix v. Bloomfield (2014) is still being appealed, but I was unable to find any indication it’s going to the Supreme Court anytime soon. That means that the 10th District Court – the highest level of Federal Court likely to hear any case involving an Oklahoma monument – has consistently ruled for removal of religious artifacts from public grounds. The Supreme Court has slightly less consistent, finding at least one circumstance (in Van Orden) in which context and history offset any First Amendment concerns, but otherwise rejecting state efforts to “contextualize” religious displays after the fact – especially when the clear goal is to make a statement via the Ten Commandments.

Needless to say, Oklahoma’s efforts are very much of the latter sort. Only quite recently have proponents begun trying to pretend they want anything other than to be ‘King of the Religious Mountain’ with this issue.

Should SQ790 pass and the state proceed with relocating the Ten Commandments to Capitol grounds, we’ll no doubt quickly hear from the Satanic Whoevers and other non-Christian faiths, demanding to erect their own idols as well. While the decision in Pleasant Grove might give hope to those wishing to prevent a ram-horned Satan smiling down on innocent children from crowding out the “Thou Shalt Nots,” we will at the very least be looking at years of expensive litigation, with limited odds of long-term success – especially if any slightly more mainstream religions choose to get involved.

None of which has historically mattered to state leadership when it comes to throwing red meat to their constituents. As long as they can keep the masses convinced their guns are about to be taken, their kids forced to turn gay in order to graduate high school, or the Mooslims coming to enforce Sharia Law, they continue to be voted back into office. At the rate they’re decimating public education, there’s no reason to think things will be changing any time soon.

Too bad there’s not a “Thou Shalt Not” about that.

Related Post: Missing the Old Testament

A Wall of Separation – The Ten Commandments (Part One)

November 1, 2016June 4, 2023 ~ Blue Cereal

In about a week, Oklahoma will vote on whether or not to repeal the ‘Blaine Amendment’ in our state constitution by passing SQ 790. According to proponents, the primary impetus behind this change is the re-installment of a ginormous graven image of the Ten Commandments on Capitol grounds. In practice, passage would open up a legion of church-state issues – including, but not limited to, the voucher-palooza much of current leadership has been craving for so long.

But what about the stated purpose? Is it constitutional to post the Ten Commandments on public grounds? Is it constitutional to prevent it, if someone else wants to put them there? The short answer to both questions is… Yes. Sort of. But not really. So, no. Well… maybe.

The First Amendment contains two specific clauses pertaining to religion. The first says that “Congress shall make no law respecting an establishment of religion” – the government can’t do anything to push a particular faith or favor religion over non-religion. This is known as the “Establishment Clause.” The second bit says “…or prohibiting the free exercise thereof” – meaning that the government also can’t discourage faith or punish religion over non-religion. This is called the “Free Exercise Clause.”

As anyone who’s ever had good friends go through an ugly argument knows, neutrality is far more difficult in practice than it sounds in theory. “Staying out of it” isn’t always possible. Responsible government, then, makes a good faith effort to avoid straying far into either danger – an imperfect balancing act at best, and one often complicated by strong emotions on all sides.

It’s difficult to say which has historically done the greater damage – a government that oppresses religion or a government that supports it. The first tends to end very badly for temporal authority; the latter tends to undermine the faith so favored.

So what has the highest court in the land said about the Ten Commandments on public property? Quite a bit, actually…

In Stone v. Graham (1980), the Supreme Court determined that posting the Ten Commandments in public school classrooms without context or educational purpose violated the Establishment Clause, and was thus unconstitutional. While it’s perfectly appropriate – even essential – to teach about faith as part of history, or to better understand literature, culture, or art, the disconnected posting of Bible verses is a big no-no.

But that’s school. Children are essentially a captive audience, and minors at that. What about government properties primarily utilized by grown-ups, who can drive and buy wine coolers and really ought to have better musical tastes by then? Do the rules change?

The Ten Commandments made the news in 2003 when a Chief Justice in Alabama and county officials in Tennessee posted copies of the Ten Commandments in their respective buildings – buildings paid for and maintained by government dollars for public purposes. Neither ended up in the Supreme Court, but defiant defenders of the displays clashed with civil libertarians verbally and emotionally. Add TV cameras and other local press, and… shenanigans!

The Alabama Justice lost his position over his refusal to remove the monument. In Tennessee the issue bounced around a bit until the county sheriff agreed to relocate the Commandments from the lobby to his office – still government property, but less ‘public,’ I suppose.

The issue picked up speed in 2004-2005.

Two different counties in Kentucky posted copies of the Ten Commandments in their courthouses. The ACLU sued, as they are wont to do, on the grounds that such displays violated the Establishment Clause. The counties responded that they weren’t displaying the Commandments as religious statements – pshaw! They were acknowledging “the precedent legal code upon which the civil and criminal codes of… Kentucky are founded.” Duh.

The District Court – the lowest level of federal court, where these sorts of cases almost always begin – applied what’s known as “The Lemon Test.” This was an informal checklist established in Lemon v. Kurtzman (1971) and often utilized thereafter to determine whether or not a government action violated church-state separation. It’s not a hard-and-fast rule by any means – several Justices over the years have openly rejected it – but it does come up fairly regularly in these sorts of cases, and it made sense for the local district court to utilized it here.

The Lemon Test:

1. A law must have a secular legislative purpose.

2. Its principal or primary effect must be one that neither advances nor inhibits religion.

3. The law must not foster “an excessive government entanglement with religion.”

The district court didn’t get past the first question. There was no secular legislative purpose, so bang – you lose. Thanks for playing, Kentucky – sucks to suck.

Not a people to go down easily, the counties revised their displays. They added a title, “The Foundations of American Law and Government,” and additional documents – excerpts from the Magna Carta, the Declaration of Independence, the Star Spangled Banner, etc. There was even a nice picture of Lady Justice, blindfold and all, holding the very scales Kentucky hoped to tip in their favor through these modifications.

The presentation emphasized the role of faith and the ‘Almighty’ in the development of the United States. They were largely ‘secular’ documents, but the cumulative message was one of divine guidance and inspiration.

This second effort didn’t make it to the Supremes. The Sixth Circuit Court of Appeals shot it down, explaining that the addition of other items without any particular connection to the Ten Commandments didn’t change the religious nature of the display.

Don’t worry, though, kids – Kentucky will be making yet another attempt before we’re through.

On the same day the Supreme Court announced its decision in McCreary County v. ACLU of Kentucky (2005), it addressed a similar case from Texas – Van Orden v. Perry (2005). Court-watchers were surprised to learn that while Kentucky’s displays were unconstitutional, a seemingly similar display in Austin, Texas, was determined to be acceptable. What was the difference?

The Texas display included an imposing six-foot monument inscribed with the Ten Commandments, so it wasn’t a matter of subtlety. This particular item, however, was located on the extensive grounds surrounding the State Capitol – grounds filled with sundry other icons related to the history and cultures of Texas. It had been donated forty some years before by the “Fraternal Order of Eagles,” a very non-religious civic organization, with additional support from Cecil B. DeMille – the producer/director behind “The Ten Commandments” and numerous other Hollywood blockbusters.

The Ten Commandments monument itself incorporated traditional American iconography – an eagle grasping the American flag and an eye inside of a pyramid – as well as two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. Surrounded by various war veterans, heroes of the Alamo, representative homesteaders, and even a replica of the Statue of Liberty, It was firmly established as an element of Texas culture and history.

Essentially, the question came down to context and intent. The Kentucky displays were clearly part of a pattern to test church-state limits and nudge religion into the public sphere as a matter of principle or political maneuvering, while the Texas display was reflective of the religious – and generally audacious – nature of Texans.

Not that it was as clear-cut as the explanation makes it seem. Both cases were decided by split 5-4 votes, and 8 Justices voted the same way both times. The difference was a single Justice, Stephen Breyer. He saw a difference in the two which eight other Justices did not – thus shaping jurisprudence and history for the foreseeable future.

Kentucky made one more run at it in 2010. They claimed to have “fixed” the problems with their original display and that it was no longer unconstitutional. What makes this claim… well, weird, is that the display itself hadn’t actually changed. Instead, Kentucky argued that their motivation – a significant reason they’d lost five years before – had evolved. Now they merely wished to include the Commandments as part of a “commemoration of historical documents.” The same display had magically become constitutional, because… history and culture! Like Texas!

In short, they wanted ‘backsies’. (As a back-up argument, they hoped the Court would consider getting rid of that ‘Lemon’ thing no one liked.)

The Sixth Circuit Court didn’t buy this “new context” even a little. Kentucky could not come back five years later and pretend none of the history associated with their efforts had occurred and none of their prior arguments had been made. Justice may be blind, but that didn’t mean it had mandatory short-term memory loss. (And we’ll decide when we’re through with the Lemon Test, thank you very much.)

Sorry, Kentucky – if you want to see the Ten Commandments displayed, you’ll have to go to Austin.

Related Post: Missing the Old Testament

A Wall of Separation – Agostini v. Felton (1997)

October 6, 2016June 4, 2023 ~ Blue Cereal

In 1985, the Supreme Court heard a case from NYC in which public school teachers were being sent into parochial schools to provide remedial education to disadvantaged students. It was decided in Aguilar v. Felton (1985) that this created an excessive entanglement of church and state, violating the Establishment Clause of the First Amendment as applied to the states via the Fourteenth.

Twelve years later, the Court changed its mind.

Prior to Aguilar in 1985, NYC was already going to great lengths in their effort to reconcile seemingly incongruent obligations. State law required them to provide remediation for Title I students, wherever they went to school, while established case law barred them from “entanglement” with sectarian efforts.

First they tried having the students come to the public schools at the end of the regular school day. That didn’t work – too difficult to maintain consistency. These weren’t students for whom transportation and out-of-school support systems were generally reliable.

Next they tried sending the teachers to the private schools at the end of the day. Constitutional safeguards were put into place in an attempt to avoid “excessive entanglement.” Teachers were given special training and written instructions on how to stay secular. Equipment or supplies from each school or devoted to different functions were not allowed to mix – no using Catholic chalk to show that remedial math problem, or leaving your secular legal pads behind and risk Baptist note-taking on them the next day.

No team teaching. No mixed activities. One wonders if perhaps eye contact with anyone wearing an angel pin was discouraged. Remedial instruction could only take place in rooms bereft of religious symbols or imagery, despite the fact that students had been surrounded by sectarian materials the entire day leading up to these lessons.

Teachers were randomly assigned to different sites. In some cases, care was taken to send teachers of one faith to schools of another. Can you imagine that team meeting? “Now, Dakota – you’re getting more and more Baptist every day from what I can tell from your Facebook posts. Let’s send you to Mother of Grace Cathedral. And Gary – you’re still pretty much unbearably Unitarian, yes? Alright – off to Word of Faith of Power Academy with you then!”

I’m, um… speculating, of course. Gary might have been agnostic.

Finally, supervisors were required to make multiple, unannounced visits to ensure no Establishing or Free-Exercise-Limiting was accidentally occurring. “Are you SURE they sneezed right before you snuck in that ‘Bless You’?!?”

Even with all of that, the Court decided in 1985 that these efforts were insufficient. So the Board of Education of NYC tried adding to their “wall of separation.”

They spent millions leasing neutral property and buying separate equipment to be used in remedial instruction, including vans which were essentially converted into ‘mobile classrooms’ to be parked near the sectarian schools, but not on “sectarian property.”

In short, complying with both the dictates of the Court and the demands of effective remediation turned into an expensive sort of ridiculous.

Agostini v. Felton (1997) began when the district filed several motions in Federal District Court seeking exemptions from the rules established by Aguilar. Their argument was threefold:

1. The costs involved were undermining the entire purpose of their efforts – and were well-beyond what could have been anticipated when Aguilar was decided. Legally, this constituted a “change of fact” – one reason the Court sometimes reverses itself. In other words, the situation was different, so perhaps the decision should be, too.

2. In the decade since Aguilar, multiple written opinions – both majority and dissenting – in other cases heard by the Court had expressed a desire to reconsider this decision.

3. Decisions in related cases over that same time period were already moving towards overturning Aguilar. If the precedent was already crumbling, it was time to re-evaluate.

The Court was not particularly swayed by either of the first two arguments, but that last one won the day. Agostini v. Felton (1997) overturned Aguilar v. Felton (1985) in a 5-4 split decision. It was no longer considered a violation of the Establishment Clause for a state-sponsored education initiative to send public school teachers into religious schools, so long as reasonable steps were taken to minimize “entanglement.”

The majority opinion, written by Justice Sandra Day O’Connor, revisits the reasoning used to decide Aguilar twelve years before, including – once again – our famous “Lemon Test.” She also discusses numerous other cases whose outcomes shape the Court’s reasoning in current circumstances.

For those of you new to jurisprudence, that’s how the Court works – they interpret laws, of course, and they’re tasked with determining the constitutionality of what’s before them based on both original intent and evolving circumstances. One of the primary tools used to do this is the Court’s own history.

Stare Decisis is the principle that the Court will generally abide by its own previous decisions unless there’s very good reason to do otherwise. It’s a critical element of the system if lower courts, institutions, and impacted citizens are to have any idea what’s considered acceptable in the eyes of the law.

If we are to be a nation of laws, rather than men (a high ideal, to be sure), then some degree of predictability in that law is essential.

O’Connor explains the Court’s change of thinking step by step:

As we have repeatedly recognized, government inculcation of religious beliefs has the impermissible effect of advancing religion. Our cases subsequent to Aguilar have, however, modified in two significant respects the approach we use to assess indoctrination.
First, we have abandoned the presumption… that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state sponsored indoctrination or constitutes a symbolic union between government and religion…

The Court cites Zobrest v. Catalina Foothills School District (1993) by way of example, including this bit:

Zobrest therefore expressly rejected the notion… that, solely because of her presence on private school property, a public employee will be presumed to inculcate religion in the students. Zobrest also implicitly repudiated another assumption… that the presence of a public employee on private school property creates an impermissible “symbolic link” between government and religion…

The next basis for the Aguilar decision was essentially overturned by Witters v. Washington Department of Services for the Blind (1986)

Second, we have departed from the rule… that all government aid that directly aids the educational function of religious schools is invalid… Even though the grant recipient clearly would use the money to obtain religious education, we observed that the tuition grants were “made available generally without regard to the sectarian nonsectarian, or public nonpublic nature of the institution benefited”…

Notice that the argument is as much about professionalism and practicality as it is the finer points of constitutional law:

Indeed, each of the premises upon which we relied {previously} to reach a contrary conclusion is no longer valid. First, there is no reason to presume that, simply because she enters a parochial school classroom, a full time public employee such as a Title I teacher will depart from her assigned duties and instructions and embark on religious indoctrination, any more than there was a reason in Zobrest to think an interpreter would inculcate religion by altering her translation of classroom lectures.
Certainly, no evidence has ever shown that any New York City Title I instructor teaching on parochial school premises attempted to inculcate religion in students. Thus, both our precedent and our experience require us to reject respondents’ remarkable argument that we must presume Title I instructors to be “uncontrollable and sometimes very unprofessional.”

As to the question of impact – does the effect of the legislation inhibit or promote religion – the Court adapts a line of thinking similar to that in Mueller v. Allen (1983). The opportunity is neutral towards religion, even if the results benefit one group more than another.

A number of our Establishment Clause cases have found that the criteria used for identifying beneficiaries are relevant in a second respect, apart from enabling a court to evaluate whether the program subsidizes religion. Specifically, the criteria might themselves have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination…
This incentive is not present, however, where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. Under such circumstances, the aid is less likely to have the effect of advancing religion…

The Court then turns to the question of “entanglement”:

Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two. Entanglement must be “excessive” before it runs afoul of the Establishment Clause…
Since we have abandoned the assumption that properly instructed public employees will fail to discharge their duties faithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required. There is no suggestion in the record before us that unannounced monthly visits of public supervisors are insufficient to prevent or to detect inculcation of religion by public employees…

Just in case there’s any misunderstanding, O’Connor brings it home with great clarity:

To summarize, New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: it does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement…

Justice Souter wrote a fascinating dissent, which several of the other justices joined. His argument is less pragmatic and more big picture. I particularly like this part:

As I will indicate as I go along, I believe Aguilar was a correct and sensible decision…
As is explained elsewhere, the flat ban on subsidization {he means the public support for sectarian institutions} antedates the Bill of Rights and has been an unwavering rule in Establishment Clause cases… The rule expresses the hard lesson learned over and over again in the American past and in the experiences of the countries from which we have come, that religions supported by governments are compromised just as surely as the religious freedom of dissenters is burdened when the government supports religion.

This echoes sentiments expressed in Engel v. Vitale (1962), and later in Lee v. Weisman (1992).

When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being taint{ed} . . . with corrosive secularism. The favored religion may be compromised as political figures reshape the religion’s beliefs for their own purposes; it may be reformed as government largesse brings government regulation.

(That last bit included quotes from quotes within other quotes, which made punctuation and citation a bit of a mess – so I just cut everything but the substance. Look it up if you care.)

Souter goes on to quote extensively from various other cases and authorities on the danger of any hint of “establishment” not to dissenters or the state, but to the faith being thus “established.” It’s a question we too easily ignore today when discussing such things.

He delineates several critical differences between the cases cited in the majority opinion and the specifics before the Court here, but concluded rather poetically – at least in my opinion:

That is not to deny that the facts just recited are regrettable; the object of Title I is worthy without doubt, and the cost of compliance is high. In the short run there is much that is genuinely unfortunate about the administration of the scheme under Aguilar’s rule.
But constitutional lines have to be drawn, and on one side of every one of them is an otherwise sympathetic case that provokes impatience with the Constitution and with the line. But constitutional lines are the price of constitutional government.

I’m not sure there’s anything I can say to top that.

A Wall of Separation – Vouchers Approacheth

September 27, 2016June 4, 2023 ~ Blue Cereal

Beginning in the 1980s, the “wall of separation” between church and state stopped getting higher. The Court’s application of the First Amendment to public schooling became somewhat more sympathetic to people of faith.

It wasn’t an outright change of direction so much as an evolution in subtleties. The devil, as they say, is in the details.

Mueller v. Allen (1983)

Minnesota allowed parents to deduct expenses related to “tuition, textbooks, and transportation” for their children, regardless of whether the school in question was public or private, sectarian or secular. In a 5-4 split decision, the Court declared this perfectly acceptable.

While the decision itself didn’t overtly challenge precedent, some of the language used to explain it certainly took things a new direction. Justice Rehnquist, the author of several poignant dissents in previous church-state decisions, was finally able to craft a majority opinion on the topic.

The Court first applied the “Lemon Test.” They readily determined that the purpose of the law was clearly secular, and the deductions in question were only a few among many in the Minnesota tax code. Justice Rehnquist:

Little time need be spent on the question of whether the Minnesota tax deduction has a secular purpose. Under our prior decisions, governmental assistance programs have consistently survived this inquiry even when they have run afoul of other aspects of the Lemon framework…
A State’s decision to defray the cost of educational expenses incurred by parents — regardless of the type of schools their children attend — evidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a State’s efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring that the State’s citizenry is well educated.

Sit up straight, kids – here’s where it gets good…

Similarly, Minnesota, like other States, could conclude that there is a strong public interest in assuring the continued financial health of private schools, both sectarian and nonsectarian. By educating a substantial number of students, such schools relieve public schools of a correspondingly great burden — to the benefit of all taxpayers. In addition, private schools may serve as a benchmark for public schools, in a manner analogous to the “TVA yardstick” for private power companies. As JUSTICE POWELL has remarked:
”Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States, they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them.”

If you’ve been paying attention lately, you’ve heard rhetoric insisting that diverting public dollars to private schools actually helps public education financially, and promotes healthy competition. Here are the rhetorical roots, which proponents are happy to fling about despite the very different circumstances.

As to the second prong of the “Lemon Test,” Rehnquist kinda… dismisses its application in this case.

Petitioners argue that, notwithstanding the facial neutrality {of these deductions}, in application, the statute primarily benefits religious institutions… They contend that most parents of public school children incur no tuition expenses… and that other expenses deductible… are negligible in value…
{M}oreover, they claim that 96% of the children in private schools… attended religiously affiliated institutions. Because of all this, they reason, the bulk of deductions taken… will be claimed by parents of children in sectarian schools…
We need not consider these contentions in detail. We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law…
Moreover, the fact that private persons fail in a particular year to claim the tax relief to which they are entitled — under a facially neutral statute — should be of little importance in determining the constitutionality of the statute permitting such relief.

To paraphrase:

Lemon Test: “The primary effect of the statute must not either support or -“

Rehnquist: “Your mom is the primary effect of the statute.”

Lemon Test: “My… what?!”

Rehnquist: “Numbers are stupid. Shut up.”

The third part of the “Lemon Test” was easy – no “excessive entanglement” here. Someone had to decide which textbooks were deductible under the law, but that was pretty easy. Algebra II? OK. The Holy Spirit and You? Not so much.

While important, Mueller v. Allen (1983) wasn’t a major shift in jurisprudence in and of itself. The next case, though…

Witters v. Washington Department of Services for the Blind (1986)

Larry Witters was a student at a private Christian college in Spokane. He was legally blind, and applied for assistance from a state agency whose primary purpose was assisting the ocularly challenged with their education or job training.

He was denied based on his pursuit of ministry as a profession. Surely, the state reasoned, assistance in this case would violate the Establishment Clause. Witters pursued remedy through the courts, but was denied at each level. Several specifically cited the “Lemon Test” as justification for their decision, believing themselves in clear accord with precedent.

The case finally reached the Supreme Court, and they disagreed. It was even unanimous, which is weird.

Justice Thurgood Marshall (yes, THAT Thurgood Marshall) wrote the majority opinion. Like Mueller, it’s a reasonable enough decision in and of itself. Also like Mueller, however, the explanation includes some language which will resurface in voucher debates years later.

Starting with the “Lemon Test,” Marshall explains that the intent of the legislation was clearly secular in nature, and couldn’t possibly be construed as an intentional promotion of religion. Then it gets interesting:

The answer to the question posed by the second prong of the Lemon test is more difficult…
It is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution. For example, a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary.
It is equally well settled, on the other hand, that the State may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is “that of a direct subsidy to the religious school” from the State… Aid may have that effect even though it takes the form of aid to students or parents…
The question presented is whether, on the facts as they appear in the record before us, extension of aid to petitioner and the use of that aid by petitioner to support his religious education is a permissible transfer similar to the hypothetical salary donation described above, or is an impermissible “direct subsidy”…

Yep. Here it comes…

By framing the state aid as more like a “paycheck” than a “government coupon,” the Court frees up how those funds may be used. It creates a stage of individual ownership of the funds involved, at which point the money ceases to be taxpayer dollars and becomes personal resources. All the rules change.

Once again this should be familiar rhetoric to anyone confronting voucher propaganda in their state. The legislation is all pre-written and sent out by the same handful of out-of-state fiscal overlords, so of course there’ll be a certain consistency in their sophistry.

This little exercise in semantics overlooks, of course, that the funds in question are not the individual’s to spend or save as he or she sees fit. They are provided for a specific, delineated purpose. The only choice left to the holder is where to apply them towards that specific purpose. So… the issue is not as clear cut as either side might like.

As far as the record shows, vocational assistance provided under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice. Any aid provided under Washington’s program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients…

The aid is permissible, despite its use at religious institutions. This begins a trend inconceivable a decade before, as public funding is increasingly viewed as something tied to the individual rather than to the public doing the funding. Which brings us to…

Zobrest v. Catalina Foothills School District (1993)

James Zobrest was a deaf student in Tucson, Arizona. He’d been in public schools for several years, and was provided with a sign-language interpreter. In 9th grade he moved to a private Catholic school, but his parents wanted to keep the interpreter.

The district refused, arguing that a state-paid interpreter signing religious doctrine at a Catholic school was certainly a violation of the Establishment Clause. (Surely they also figured once the kid bailed and went to a private school, he wasn’t their responsibility anymore – but they were wise enough not to make than an official part of their argument.)

Various lower courts applied the “Lemon Test” and agreed with the district, but the Supreme Court reversed that decision – this time in a 5-4 split. Rehnquist again wrote the majority opinion.

{I}f the Establishment Clause did bar religious groups from receiving general government benefits, then a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair…
{W}e have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit. Nowhere have we stated this principle more clearly than in Mueller v. Allen (1983), and Witters v. Washington Dept. of Services for Blind (1986)…

I hope you’re keeping up and noticed we just covered those.

Rehnquist summarizes each of the prior cases, then…

The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as “handicapped” under the IDEA, without regard to the “sectarian nonsectarian, or public nonpublic nature” of the school the child attends.
By according parents freedom to select a school of their choice, the statute ensures that a government paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents. In other words, because the IDEA creates no financial incentive for parents to choose a sectarian school, an interpreter’s presence there cannot be attributed to state decision-making…

Yada yada… you get the idea, I’m sure.

Rehnquist concludes with a clarification I find potentially significant. In the interest of word count, I’ll summarize.

This case was particularly straightforward, he explains, because the school itself didn’t benefit, even incidentally, from the provided assistance. If Zobrest was there without an interpreter, the school makes the same tuition. If he didn’t enroll because he couldn’t have the interpreter, his seat goes to someone else and the school makes the same tuition.

He contrasts this with a previous decision preventing the state from providing teaching materials and equipment for private schools. In that case, the state was financing equipment which the school would otherwise have to pay for itself – thus assisting religion, as it were. In Zobrest, the aid is quite specifically for the student, regardless of where he may be learning.

Just seems like that might be significant at some point. Maybe not.

So far, none of these cases involve actual vouchers given to actual students to facilitate leaving the public school system in order to attend religious institutions. That’s about to change.