Class #22: Establishment Clause III

Town of Greece and American Legion

First Amendment Class 22: Establishment Clause III

• Town of Greece v. Galloway (1628-1637) / (900-910)
• American Legion (Supplement)

Comments

[JasonT20]

I'm surprised that this post didn't evoke some responses before now. I agree with Prof. Blackman that Establishment Clause jurisprudence is generally a mess, especially in regards to the narrow issue of monuments on government property, such as in American Legion. There are a lot of difficult questions, and On a teaching note, I do like the way that Prof. Blackman handles the questioning of his students. I teach physics, not something that can involve so many subjective arguments or where you need to try and infer what motivates different parties to the case like law. I think he does a great job of getting his students to express their understanding rather than regurgitate facts or simply say what they think the teacher wants to hear. Whether the subject is science, law, or literature, getting students to express what they are thinking in their own words is essential teaching strategy.

As for the cases themselves, the war memorial cross is a tough one, even for me as a non-believer that would otherwise want to side with the American Humanist Association on issues like this. Part of me agrees with the Breyer's position that Blackman kind of summarizes as, "It's been there for a long time and essentially no one complained, get over it."

On the other hand, this is part of the problem when it comes to religious symbols and messages supported or endorsed by government. People in the minority often face a lot of backlash if they do complain, so the fact that few, if any, people complain about it over its long history does not support keeping it. If there is a lawsuit over it now, then there were likely quite a few people that were put off by it in the past that just didn't want to face the backlash of saying something.

I also noted the example of a group that wanted a monument with their beliefs installed near a Ten Commandments monument. (I looked it up, the case, Pleasant Grove City v. Summum (2009), was about Seven Aphorisms, rather than ten.) The case was actually a Free Speech case, not an Establishment Clause case. The Summum group was arguing that they were being denied their Free Speech rights because the city was creating a public forum in their park by accepting the Ten Commandments monument and yet denying them the right to donate and display their monument. The 9-0 SCOTUS ruling, written by Justice Alito, stated that the Ten Commandments monument was government speech, once it was accepted, since it was then owned and maintained by the city.

[JasonT20]

After further thought, I have to take back some of my praise of Prof. Blackman's questioning of the students. I noticed, in retrospect, that I didn't hear him ask any students how they would have argued against the Town of Greece. I'm not a lawyer or law student, but I'll give my perspective.

Even accepting that that the purpose of those that wanted the opening prayer was to try and create some "unity" or shared experience, a prayer is not going to do that. No only is the existence of a lawsuit over it proof that it failed to do that, it should be obvious that it can't be unifying, unless everyone follows the same religion. Even some generic, watered-down, prayer to a monotheistic god, rather than one that is explicitly Christian (by invoking Jesus, for instance), still leaves out Buddhists, Scientologists, and non-believers.

Besides being doomed to fail at this stated purpose (unless you think that 95-99% of people being included is close enough to call it unifying), there is the other purpose that neither Blackman nor his students considered. Conformity.

There is ample evidence that many of these Establishment Clause cases revolve around efforts by leaders with religious beliefs that match the majority of the public looking to enforce conformity and dominance for that majority belief. They are not wanting to "virtue signal" to the public that they share their beliefs, nor to try and create some sort of unifying, shared experience. They want to enforce the dominant position of their religious beliefs. Both in history (think mandatory Bible reading and school prayer that courts struck down decades ago), and in the present, we see this. I need to get to work, but I can come back and provide specific examples if you doubt that this is happening.