91 wrote:
It is worth remembering that in the case of Lynch v. Donnelly, the Rhode Island Christmas display had a Santa, a tree and a seasons greetings banner along with a nativity and it was ruled by the supreme court to be Constitutional. The Texas has nowmen, gnomes, reindeer, Santa and a Christmas Tree. It also has Kwanzaa and Jewish symbols.
91 somehow forgot to mention
Allegheny vs. ACLU in his litany of Supreme Court cases. Based on that case (which is logical to presume this was the court case mentioned by the complaintants in that Blaze article, which would make it rather important to this discussion), the argument would be legitimate since the video shows the creche was essentially by itself. The article also shows that the Lynch decision involved private property, not a courthouse lawn. A menorah was also involved in the Allegheny ruling, and allowed to stand due to its proximity to a Christmas tree, which is now considered a secular symbol.
Justice Sandra Day O'Connor in the Allegheny decision wrote:
In contrast to the creche in Lynch, which was displayed in a private park in the city's commercial district as part of a broader display of traditional secular symbols of the holiday season, this creche stands alone in the county courthouse.
The final part of the Allegheny decision wrote:
This recognition that the more religious [p637] alternative may, depending on the circumstances, convey a message that is least likely to implicate Establishment Clause concerns is an excellent example of the need to focus on the specific practice in question in its particular physical setting and context in determining whether government has conveyed or attempted to convey a message that religion or a particular religious belief is favored or preferred.
Again, it looks like it stands alone in the video, leading to an assumption that one religion might be favored.
In this article on the Establishment clause, the endorsement test, made by O'Connor, would now usually make this judgment:
Justices O'Connor, Brennan, and Stevens wrote:
I continue to believe that the endorsement test asks the right question about governmental practices challenged on Establishment Clause grounds, including challenged practices involving the display of religious symbols. Moreover, commentators in the scholarly literature have found merit in the approach. See, e.g., Beschle, supra, at 174; Comment, Lemon Reconstituted: Justice O'Connor's Proposed Modifications of the Lemon Test for Establishment Clause Violations, 1986 B.Y.U.L.Rev. 465; Marshall, "We Know It When We [p629] See It": The Supreme Court and Establishment, 59 S. Cal.L.Rev. 495 (1986); Developments in the Law 1647. I also remain convinced that the endorsement test is capable of consistent application. Indeed, it is notable that the three Circuit courts which have considered challenges to the display of a creche standing alone at city hall have each concluded, relying in part on endorsement analysis, that such a practice sends a message to nonadherents of Christianity that they are outsiders in the political community. See 842 F.2d 655 (CA3 1988); American Jewish Congress v. Chicago, 827 F.2d 120, 127-128 (CA7 1987); ACLU v. Birmingham, 791 F.2d 1561, 1566-1567 (CA6), cert. denied, 479 U.S. 939 (1986). See also Friedman v. Board of County Commissioners of Bernalillo County, 781 F.2d 777, 780-782 (CA10 1985) (en banc), cert. denied, 476 U.S. 1169 (1986) (county seal including Latin cross and Spanish motto translated as "With This We Conquer," conveys a message of endorsement of Christianity). To be sure, the endorsement test depends on a sensitivity to the unique circumstances and context of a particular challenged practice and, like any test that is sensitive to context, it may not always yield results with unanimous agreement at the margins. But that is true of many standards in constitutional law, and even the modified coercion test offered by JUSTICE KENNEDY involves judgment and hard choices at the margin.
Proximity matters apparently. Just because you have the secular symbols does not mean anything if they are not close enough to make an overall display. Unfortunately, since I don't have the map of the display, I cannot make a judgment myself, so until then I find the argument valid until proven otherwise based on this case. I am not sure if anyone knows the outline either, but please share if you can. This does not appear to be as cut-and-dry as some people think.
13 Dec 2011, 2:57 am
