December 22, 2010

A Possibility of New Precedent Affecting the Cranston West Banner

Carroll Andrew Morse

Would there be room in the public sphere -- specifically, within the the Cranston West High School cafeteria auditorium -- for a banner beginning with the words "Heavenly Father", if the most recent Establishment Clause precedent issued by the United States Supreme Court were to say that a relevant lower court decision was flawed, because...

The court’s decision continues a troubling development in our Establishment Clause cases -- the use of a “reasonable observer” who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion. Despite assurance from the Supreme Court that the Establishment Clause does not require us to “purge from the public sphere all that in any way partakes in the religious,” , the court’s “reasonable observer” seems intent on doing just that...

In my view, the court’s application of the endorsement test is incorrect to the extent it: (1) effectively imposed a presumption of unconstitutionality on religious symbols in the public sphere; (2) employed a “reasonable observer” who ignored certain facts of the case and instead drew unsupported and quite odd conclusions; and (3) incorrectly focused on the religious nature of the crosses themselves, instead of the message they convey.

According to this rationale, it is not obvious that the banner should be removed.

The passage above, however, is not a controlling Supreme Court precedent. It comes from the opening of a dissenting opinion issued this past Monday in the 10th Circuit case of American Atheists, Inc. v. Duncan, which considered the permissibility of roadside crosses placed as memorials by the Utah State Troopers association. Eugene Volokh, uberblogger and UCLA law professor with significant expertise in First Amendment issues, believes that there is a strong possibility that the US Supreme Court will take Atheists v. Duncan, and that at least five Justices lean towards an opinion in line with the dissent above. Volokh notes, for example, that in a recent Establishment Clause case, Justice Anthony Kennedy, a frequent swing vote on the Court, wrote that...

The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.
Now, there are significant differences between the Utah and Cranston cases that should not be discounted; in the Utah case the government is not directly putting up memorials, it is allowing another organization to put them in a public space, while in Cranston, the city government is directly responsible for choosing what is displayed. Still, since a lasting legal resolution in Cranston may not be possible until the disposition of Atheists v. Duncan is final, the prudent course of action with regards to the Cranston West banner may be to put off immediate further action, until the Supremes have their say on the Utah memorials.

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The Tenth Circuit's American Atheist is perhaps the nadir of Establishment Clause jurisprudence, and should the Supreme Court take the case it will almost certainly be reversed.

Still, there is a big difference between memorial crosses placed along the side of a public highway and a banner installed by school administrators inside a public school building.

On the other hand, turning to the "reasonable observer" standard, one suspects that the Cranston West banner in issue has probably, over the years, been "observed" by many "reasonable" and "unreasonable" students, parents, basketball fans, RIIL officials etc., etc. Could we find even one of them who came away from the exposure with the honest belief that the City of Cranston had an established church?

I'm thinking, "not."

Posted by: brassband at December 22, 2010 4:44 PM

I'm not anti-religion. I'm not a follower myself, but I cut my church a check every year to stay in touch and support the good work they do. I like reading religious texts, and I think there's a lot to be learned from them.

Still, it gives me the willies to think that a sign proclaiming a 'heavenly father' is hanging over children at school. That's a little much, no?

Also, I usually omit the 'McCarthy amendment' to the Pledge of Allegiance, and I'd like to see US currency drop the God references they added in the 1950s.

I don't imagine that the God I read about in the old or new testaments would enjoy being paraded-around on the face of the government.

Posted by: mangeek at December 22, 2010 5:02 PM

"In God We Trust," or a similar motto, has appeared on US coins or currency since the Civil War.

The addition of "under God" to the Pledge was, I believe, principally a project of the Knights of Columbus, beginning in the 1940s or early 1950s. I think it was a Member of the House (not Sen. McCarthy) who introduced the joint resolution that ultimately became law.

As for what God might think of having His name on our coinage, I can only refer you to Mark 12:14-17.

Posted by: brassband at December 22, 2010 5:17 PM

School prayer ended with my HS graduating class in 1963.References to God all through my growing up attending NYC public schools did no harm-I don't think anyone felt oppressed,or any of the nonsense we hear from the secular humanists.
Ironically the student who recited the 23rd Psalm at our graduation later became an ACLU lawyer.
This whole issue has been overheated and has caused some real hate between people during the intervening years.
I think we have enough other deadly serious problems without having to start wrrying about a rancid little scumbag like Steven Brown and his cohorts.It's time he got his complaints rejected.
I happen to know that for years he used a "professionally offended"individual to base his complaints on.i know the person's name,but since they aren't actually a public figure I'll let it go.

Posted by: joe bernstein at December 22, 2010 6:03 PM

As a Cranston West graduate from 1975, leave the banner up! Once again a few find the need to dictate to the majority. The words are meant to inspire. They've been there for 50 years. This student will be there for three. Get over it. This is a tempest in a teacup.

Posted by: XS at December 22, 2010 8:22 PM

I am not certain where I would draw the line. I am certain that a "reasonable observer" of our Constitution would note that it guarantees freedom of religion, not freedom from religion.

Becoming vexed by roadside crosses, get a life.

I am not what I would call religious. Despite notable exceptions, I have found most people who are religious to generally be people of "good will". They are concerned with leading a "good life" as God has given them the light to see it.

Posted by: Warrington Faust at December 22, 2010 9:36 PM

most people who are religious to generally be people of "good will". They are concerned with leading a "good life" as God has given them the light to see it.

Posted by Warrington Faust

As are MOST who are not religious !!

Posted by: Sammy at December 22, 2010 10:57 PM

Keep that religious crap out of the schools.
Plenty of places in ones own home to set up shrines to stonings, oppression, discrimination, hypocrisy, corruption, pedophilia and all the other "good" stuff religion promotes!

Posted by: Bob at December 23, 2010 12:54 AM

I don't see how having a roadside cross is a problem, so long as DOT workers aren't putting it up on taxpayer time.

It's a little different to have a sign up on the wall of a school, though.

A religious memorial maintained by citizens along the highway doesn't 'establish' anything in my mind, but a sign on a wall in school implies endorsement.

Posted by: mangeek at December 23, 2010 11:09 AM

I guess when a Jewish,Moslem,or Buddhist Utah State Trooper gets killed on duty,someone will put up an appropriate symbol.
Until then,why can't the accursed ACLU just leave it alone?If I ever have the chance to give some MF from the ACLU CPR I won't.Wouldn't want it from them either.I'd much rather roll a 7.

Posted by: joe bernstein at December 28, 2010 5:24 PM
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