A Possibility of New Precedent Affecting the Cranston West Banner
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…According to this rationale, it is not obvious that the banner should be removed.
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.
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.