Our holiday discussion of the Establishment Clause continues.  Today we discuss the Supreme Court’s recent Establishment Clause cases.  Many of these cases have been decided 5-4, with one or more concurring opinions (Salazar v. Buono, for example, involved five separate opinions).  Some have complained that the Court’s cases have only muddled the state of the law, and the Court seems sharply divided with regard to which rules to apply and which results to reach.  Today we ask for your thoughts on the Court’s recent cases.  Is the law is getting clearer?  Is it moving in the right direction?

Also, our discussion of the Supreme Court’s Christmas party remains ongoing.  Some nice comments from that discussion are below the jump.

Andrew DeFranco 

Government laws and policies can and do raise establishment clause issues when they signal that members of one religion are a favored “in” group and that others are outsiders of the political community. This harm occurs with or without monetary backing. While the Chief Justice could sponsor a christmas party at his home, at his own expense, (which would be private speech and fine) when he throws the weight of the Supreme Court behind the festivities, it becomes a government endorsement of christmas. Of course, christmas has proselytizing and secular elements, and when treated with care (or seven plastic animals) recognition of christmas can be sufficiently secularized to get Fox News to notice, but as I understand it, the caroling is not limited to Jingle Bells and I’ll be Home for Christmas.

Although I might agree with the above comments if this were a christmas party at the EPA or some other governmental institution, this is the Supreme Court. By having a christmas celebration, woven into the institution, the Justices will get the impression that this governmental recognition of one religion is normal and proper. In the opinions and oral arguments for many establishment clause issues, the Justices frequently raise religions practices of the court that have never been challenged, such as the invocation of “god save this honorable court” at the beginning of sessions and the presence of Moses and the Ten Commandments chiseled into the courthouse’s frescos. Supposedly harmless recognition of religion, and celebration of christian doctrine by the court, have subtly affected the holdings in real cases where the government activity challenged may be far from trivial. At the very least, we should expect the tribunal of last resort avoid the appearance of favoring litigants of one faith over others.

Richard Schragger 

The Court’s Christmas party is trivial. I think it is poor form not to make slight adjustments to take into account the sensibilities of an increasingly pluralistic judicial staff and an increasingly pluralistic nation. Nevertheless, the Christmas party is not unconstitutional. What’s more, though they take up a lot of breathing space, symbolic church-state entanglements are not where the real action is in the Establishment Clause arena. The expressive harms of government endorsement are minor compared to the more substantial harms of government funding. In other words, the real action is around money, and the Court’s recent Establishment Clause standing decisions–Hein and Winn–make it increasingly difficult for plaintiffs to challenge programs that funnel significant state monies to churches.

Posted in Community

Recommended Citation: Tejinder Singh, Today in the Community: December 20, 2011, SCOTUSblog (Dec. 20, 2011, 10:43 AM), http://www.scotusblog.com/2011/12/today-in-the-community-december-20-2011/