Posted on by Marc O. DeGirolami · 1 Comment

Devil’s Cross

I was rereading the Supreme Court’s opinion in Salazar v. Buono, the case concerning a cross erected in the Mojave Desert in 1934 by a group of veterans in order to commemorate American soldiers who died in World War I. In his dissenting opinion, Justice Stevens took his usual rigid view in any case dealing with display of symbols: the cross “necessarily” conveys an “inescapably sectarian message….Making a plain, unadorned cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” Justice Stevens also cited approvingly the district court judge’s view that the cross is “exclusively a Christian symbol.”

The more I read these lines, the more implausible I find them and the view of symbols that they represent. Perhaps another way to put my skepticism is that any observer who believed this about a symbol like the cross would be unreasonable–the sort of person who could not effectively administer a “reasonable observer” standard in Establishment Clause cases of this kind. The implausibility of the view is conceptual but it also is empirical. Though I recognize that anecdotes are not data, still, personal experience is worth something. The “holiday” of Halloween was for children when I was a child, but it seems to have become a kind of modern-day equivalent of Venetian Carnevale circa 1760. No matter; this year, I am grateful to Halloween for offering a useful challenge to claims about what the symbol of the cross must mean, in all times and places, for all people.

My neighborhood is child-saturated, and as a result Halloween is widely and noisily celebrated. Part of the celebration involves the display of putatively spooky lawn decorations of motley sorts, among the most popular of which is the “creepy gravesite” ensemble. It used to be that round headstones were the convention. But now one increasingly sees in such arrangements the presence of a cross. Here’s a fairly typical setup:

Devil's CrossProbably my surreptitiously taken picture does not do justice to the mise en scène. But what it displays is a simple black Latin cross with the words RIP at the base. You can see that the cross is surrounded by other Halloween acoutrements–a skeleton in the ground, gravestones, spiderwebs. All around these sit related objects–werewolves and other hairy and unsavory creatures, a plastic witch, ghosts dangling from trees with flashing red eyes, and so on. This sort of decorative landscape is extremely common. The presence of a cross in it is less so, but just in my own neighborhood, I counted 4 displays that contained a cross of some sort.

Suppose that a municipality chose to display something like this on town hall grounds at Halloween. What would it be communicating? What does a cross mean in a display like this? Its meaning is complicated because it is situated in several contexts. It sits first within a mock cemetery but the point of the display is not remotely either commemorative (as in a memorial for the dead) or Christian. The point of the display is to celebrate, in a lighthearted, cute, and possibly mischievous way, all that Halloween has come to represent as an occasion for kids: the occult, mild wickedness, spookiness, and so on. It would make a dour schoolmarm of Christianity to say that displays like this are anti-Christian. Of course they are not. But it would verge on sheer absurdity to claim that a cross in this sort of context conveyed “an inescapably sectarian message,” or that what would otherwise be a tribute to spooky kid fun just must be transformed into a celebration of Christ by the inclusion of a cross.

It is true that even in this context, the meaning of the cross is to some extent connected to the original Christian meaning. It is so connected in this weak way: had there been no prior Christian meaning, there could have been no subsequent tradition in which crosses have come to convey a commemorative message, and therefore no cultural context within which a cross could come to find its way into a Halloween cemetery display. But noting that atavic genealogical connection is very different than assigning this particular cross–or others like it–an indelibly Christian meaning today.

It might be argued that the meaning associated with the Halloween cross only arose because people are ignorant of the Christian, soteriological meaning. That seems uncharitable to me, but also mistaken. What is more probable is that meanings intertwine, and that it becomes difficult over time to disaggregate the religious meaning from other fair, culturally specific interpretations. As I write in The Tragedy of Religious Freedom about the Mojave Desert Cross:

Just as it is impossible to distinguish precisely where the religious ends and the artistic begins in a Bach oratorio, a Giotto fresco, or a Dantean canto, so, too, is it fruitless to attempt to tweeze away the Buono cross’s civic submeanings from an antecedent religious meaning. But the fact that it is unprofitable to perform this exercise in segregation, and in quantifying the importance of this or that meaning, does not mean that permitting these various submeanings to exist is equivalent to condoning state sponsorship of religious belief. Religious and cultural meanings may and do interpenetrate across time. And meanings that emerge from that interpenetration are not ipso facto constitutionally impermissible, but invitations to historically and contextually graduated judgment.

Posted on by Marc O. DeGirolami

Haupt on Active Symbols

Our friend and former Center for Law and Religion Forum guest Claudia Haupt (Columbia) has posted her paper, “Active Symbols,” forthcoming in the Boston College Law Review. The abstract follows.

Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive”. This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form.

Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement—the dominant competing approaches to symbolic messages in Establishment Clause theory—as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns.

Posted on by Marc O. DeGirolami

Garnett on the Legislative Prayer Case

My friend Rick Garnett has an extremely sensible post about the legislative prayer case, Town of Greece v. Galloway, which will be heard this term by the Supreme Court. A bit from Rick’s analysis:

[J]udges evaluate, and sometimes disallow, policies that majorities considered, argued about, and embraced.  Because, again, majority rule is the usual way we go about political decisionmaking, this evaluation and – especially! – disallowing is a big deal, and it’s important that the work of judicial review be done right.  Whether or not it is depends, I suggest, on (at least) three related variables:  First, identifying, as correctly as possible, the judicially enforceable meaning of the constitutional text in question; second, the prudent design and development of workable doctrines that courts can use to decide real-world cases; and third, affording the appropriate deference, if any, to those actors whose decisions are being reviewed and who, presumably, decided that those decisions were constitutionally sound . . . .

[T]he Court can aspire to do well with respect to…doctrine and deference.  The court of appeals, its opinion states, saw “no test-related substitute for the exercise of legal judgment” and it characterized the case as a “fact-intensive” one “which def[ies] exact legal formulas[.]”  In the end, though, it couched its decision in “endorsement test” terms, and reported that “several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials,” supported the conclusion that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.”  But neither throwing aside doctrines and tests in favor of “legal judgment” nor engaging in unstructured speculation, however “contextual,” regarding imagined reactions, impressions, and beliefs that “can give only limited guidance to municipalities that wish to maintain a legislative prayer practice” is a sensible or appropriately deferential way for a reviewing court to play its role.  A relatively clear, historically rooted standard, the tool employed in the Marsh case, works better, and is the more consistent justification for judicial review.

Of course, not all permissible practices are best practices or even good ideas.  Even if the court of appeals reached the wrong conclusion, in an unsatisfying way, about what the Constitution allows, its suggestion to towns that they “pause and think carefully before adopting legislative prayer” is sound advice.  Although it is true that many of us – and, in many places, most of us – believe that it is both appropriate and right to seek God’s help with the important business of living together and well in political communities, it is also true that ours is a religiously pluralist society that is becoming more so.  In such a society, as the American Jesuit scholar, John Courtney Murray, wrote, “[men and women] of all religions and of no religions must live together in conditions of justice, peace, and civic friendship.”  The line that separates policies that build up this friendship from those that tear it down is important, even if judicial review is not always the best way to find it.

Rick’s post is part of an on-line symposium at SCOTUSblog discussing various features of the case; the other posts may be found here.

For what it’s worth, I think the most interesting thing about the case does not concern legislative prayer itself, but the fate of the endorsement test, though this is not an issue that the Court would need to reach if it finds itself in a minimalist mood.

Posted on by Mark Movsesian · 5 Comments

More on Yoga in the Public Schools

Yoga Class at Encinitas School (NYT)

Last month, a California state court ruled that including yoga in an elementary school phys ed program does not violate the Establishment Clause. The program was funded by a half-million dollar grant from the Jois Foundation, a private organization that promotes the form of yoga known as Ashtanga. The court ruled that the Encinitas Union School District had scrubbed religious references from the classes, so that what remained was simply a fitness and stress reduction program for kids. To use the language of the so-called “endorsement test,” the court concluded that a reasonable observer would not believe the school district had impermissibly endorsed a religion–in this case, Hinduism.

This week, the Oxford University Press blog published an interesting interview with Candy Gunther Brown, an Indiana University religious studies professor who served as an expert witness for the plaintiffs in the case. Brown argues convincingly that Ashtanga yoga is in fact deeply religious. “Ashtanga,” she says, “emphasizes postures and breathing on the premise that these practices will ‘automatically’ lead practitioners to …  ‘become one with God’… ‘whether they want it or not'”:

Although EUSD officials reacted to parent complaints by modifying some practices, EUSD classes still always begin with “Opening Sequence” (Surya Namaskara) [a prayer to the sun god] and end with “lotuses” and “resting” (aka shavasana or “corpse”—which encourages reflection on one’s death to inspire virtuous living), and teach symbolic gestures such as “praying hands” (anjalimudra) and “wisdom gesture” (jnanamudra), which in Ashtanga yoga symbolize union with the divine and instill religious feelings.

It’s quite possible for people, especially kids, to be influenced by these religious messages, she says:

Scientific research shows that practicing yoga can lead to religious transformations. For example, Kristin is a Catholic who started Ashtanga for the stretching; she now prefers Ashtanga’s “eight limbs” to the “Ten Commandments.” Kids who learn yoga in public schools may also be learning religion.

Perhaps Brown overstates the difficulty of separating religious and non-religious elements in yoga, I don’t know. After reading her interview, though, the question I have is this. How could anyone not think Ashtanga yoga is religious, and that by sponsoring this class–especially with funding from an organization that promotes Ashtanga’s religious message–the school district has endorsed religion in a manner that current law forbids?

Perhaps, with our deeply Protestant religious culture, Americans simply dismiss the notion that physical practices can be genuinely “religious.” Religion is a matter of mind and spirit, not body; stretching is purely physical, just a nice way to relax. Stretching isn’t prayer, after all. Brown’s point, however–and it is a very important one–is that these practices are a kind of prayer. Ashtanga yoga purports to instill religious feelings and lead one to God, whether one intends it or not. (In fact, Hindus might find the claim that yoga is just a stretching exercise rather insulting). And the school district has students participate in these prayers, not just learn about them from a book. The Supreme Court has said the Constitution forbids even displaying the Ten Commandments inside a public school classroom, lest students feel pressured to read and meditate on them. But this is OK?

Let’s try a thought experiment. Orthodox Christianity has a tradition known as hesychasm, in which hermits discipline themselves to meditate, shut out the world, and experience God inside them. It’s a very difficult mystical practice, not for everyone–though some people like to dabble. Apparently it gives great inner peace. The key element is repetition of the Jesus Prayer: “Lord Jesus Christ, Son of God, Have Mercy on Me, a Sinner.” Suppose some enterprising Orthodox Christian foundation adapted these practices, put the Jesus Prayer in an esoteric language, and proffered the package to a public school district as a stress-reduction program for kids. Would anyone think such a program constitutional under present law?

The plaintiffs in the case have indicated they plan to appeal. I hope they do, because this could turn out to be be a very significant case. As Eastern religious practices continue to seep into mainstream culture, situations like this are bound to recur. They may lead to a change in the way Americans understand religion.

Posted on by Mark Movsesian

California Court Rules School Yoga Program Does Not Violate Constitution

The Crisscross-Applesauce Position (New York Times)

An update on a case I wrote about in May: a California state court has ruled that including yoga in an elementary school phys ed program does not violate the Establishment Clause. Under current Supreme Court precedent, public schools may not endorse any particular religion (or, for that matter, religion generally). In yesterday’s ruling, the San Diego Superior Court reasoned that the Encinitas Union School District has scrubbed religious references from its yoga classes–the Lotus position has been renamed the “Crisscross-Applesauce” pose, for example–so that what remains is merely a fitness and stress-reduction program for kids. The court apparently did not find persuasive the testimony of an Indiana University religious studies professor, Candy Gunther Brown, who argued that yoga, a Hindu practice, is inherently religious. A lawyer for parents who brought the lawsuit against the school district says his clients will likely appeal.

Posted on by Mark Movsesian

District Court Rules in Favor of Big Mountain Jesus

Image from the Flathead Beacon

An update on a story we’ve been following: Yesterday, a federal district court ruled that the US Forest Service did not violate the Establishment Clause by renewing a permit for “Big Mountain Jesus” (left), a six-foot-tall statue on land the Service leases to a private ski resort in Big Mountain, Montana. The statue has been in place since 1954, when the Knights of Columbus donated it–though this part is a matter of some dispute–as a war memorial. In response to an objection from the Freedom From Religion Foundation (FFRF), the Service decided not to renew the statue’s permit in 2011. This decision led to public outcry–the service received 95,000 comments in less than two months–and the Service reversed itself, whereupon the FFRF sued.

Under current Supreme Court precedent, official display of a religious symbol violates the Establishment Clause if a reasonable observer would think that the government is endorsing a religious message. In yesterday’s opinion, the court ruled that a reasonable observer would not perceive an official endorsement of religion in the case of Big Mountain Jesus. The statue is on land the government leases to a private owner and is maintained by a private organization–facts an inscription on the statue’s base explains. Many observers would be unaware of any governmental involvement at all. Moreover, although a statue of Jesus is obviously a Christian symbol, the secular, even irreverent associations of this particular statue minimize any religious message. At least some people think of the statue as a war memorial. Some people value the statue’s historical significance. And most observers, the court suggested, see the statue as a kind of campy joke: “Typical observers of the statue are more interested in giving it a high five or adorning it in ski gear than sitting before it in prayer.”

It’s unfortunate that current doctrine favors the trivialization of a religious symbol as evidence of its constitutionality, but that’s where we are. (Remember the candy canes and reindeer around the creche?) The court also noted that Big Mountain Jesus had been around for about 60 years before anyone had thought to object. This, too, is an important factor under Supreme Court precedent: “longevity demonstrates that ‘few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect.'”

The Becket Fund for Religious Liberty, which intervened in the case on behalf of the Knights of Columbus and other parties, has a press release about the case here. The FFRF says it will likely appeal.

Posted on by Marc O. DeGirolami

NYC Council Passes Equal Access Resolution for Churches to School Property

Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). We have on various occasions discussed the “serpentine path” of litigation in the Bronx Household of Faith case, and it appears from Mead’s report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be “appearing to endorse religion.” The Council’s resolution may have been spurred by the events in the Southern District of New York.

I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the “appearance” of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually does violate the Establishment Clause. Here, though, I only want to note that Mead’s view that “the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties” is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one’s views, that is not necessarily conclusive on the question whether the Constitution forbids such use today.

Posted on by Mark Movsesian

Is Yoga Constitutional?

Last month, I  wrote about a controversy surrounding the White House’s inclusion of a yoga garden in its annual Easter Egg Roll. The problem is this: yoga is a Hindu spiritual practice. Arguably, therefore, state-sponsored yoga is a religious endorsement that violates the Establishment Clause under existing Supreme Court case law.

Yoga Class at Encinitas School (New York Times)

It turns out that very issue is being litigated this week in a California  court. The Encinitas Union School District has introduced yoga as part of the phys ed program in elementary schools. Some parents object that the program highlights yoga’s spiritual elements and amounts to religious indoctrination. The school argues that it has eliminated religious references and that what remains is nothing more than an enriched gym class. An Indiana University religious studies professor who testified at trial demurs. She says that that it would be odd, from a Hindu perspective, to separate yoga’s physical and spiritual elements.

Under Supreme Court precedent, government can separate “cultural” from “religious” messages and promote the former. That’s why official Christmas displays with reindeer and elves survive constitutional scrutiny, but not solo nativity scenes. The logic is that the secular decorations swamp the religious message and ensure that passersby don’t think the government is endorsing Christianity, as opposed to Christianity’s cultural accretions.

This logic has saved some Christmas displays, but offended some Christians. To them, the Supreme Court’s reasoning suggests an unfortunate hostility to their religion: Christmas is acceptable in the public square only if its spiritual associations are diluted. To be sure, the Supreme Court  has said only that official displays must avoid religious associations, but people rarely compartmentalize things so logically. Culture often follows law.

So here’s a question: if official yoga programs are allowed on the theory that they have been scrubbed of religious associations, will pious Hindus object?Will people start demanding to keep the yoga  in yoga?

Posted on by Mark Movsesian · 1 Comment

National Day of Prayer

You might not have noticed it, but today is the National Day of Prayer. I should say, a National Day of Prayer, as that’s what the US Code calls it. Every year, by law, the President issues a proclamation “designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, or as individuals.” President Obama’s proclamation this year is rather moving. It stresses the comfort that Americans draw, in times of suffering, from the simple fact that other Americans are praying for them:

Prayer brings communities together and can be a wellspring of strength and support. In the aftermath of senseless acts of violence, the prayers of countless Americans signal to grieving families and a suffering community that they are not alone. Their pain is a shared pain, and their hope a shared hope. Regardless of religion or creed, Americans reflect on the sacredness of life and express their sympathy for the wounded, offering comfort and holding up a light in an hour of darkness.

The proclamation itself ends with a prayer: “I join the citizens of our Nation in giving thanks, in accordance with our own faiths and consciences, for our many freedoms and blessings, and in asking for God’s continued guidance, mercy, and protection.”

The day is not without its critics. The Freedom from Religion Foundation once filed a lawsuit, dismissed on standing grounds, arguing that a National Day of Prayer violates the Constitution, and the American Humanist Association hosts a competing National Day of Reason every year. (You might not have noticed that, either.) Orthodox theists of various sorts might find the day objectionable as well. To whom or what are Americans being invited to pray? Doesn’t officially-encouraged prayer to a nondescript deity lead to confusion and least-common-denominator religion? Not everyone finds generic prayers so harmless.

I’m not sure what the answer is, except to say that designating a National Day of Prayer seems entirely American. Public religious references of a nonsectarian character have long been a part of the American tradition, for better or worse, and there’s no stopping them now. The wisdom of our ancestors is in such things, as Dickens once observed in another context, and if we disturb them, the Country’s done for. Purists, of the secular and orthodox variety, have to adjust.

Posted on by Marc O. DeGirolami · 1 Comment

Garvey on Endorsement, Graduation Speakers, and Student Groups

Here is a thoughtful, extended comment by my friend and Catholic University of America President John Garvey on an issue with special salience at around this time of year–graduation speakers.  John uses the occasion to offer some broader thoughts on the concept of “endorsement,” which has been so important to the Supreme Court’s Establishment Clause jurisprudence.  In particular, he considers the question of the “public meaning” of an official act by a university–whether of a religiously affiliated university conferring an honorary degree on a public figure, some of whose views the school holds as anathema, or of a public university refusing to grant recognized status to a student group whose views it holds as anathema (e.g., the situation in CLS v. Martinez).  I was happy to see that John raised and discussed two documents that we read together in my Catholic Social Thought and the Law class, Ex Corde Ecclesiae and the United States Conference of Catholic Bishops’ Catholics in Political Life.

The piece is also very much in tune with the arguments from institutional pluralism that John advanced to great effect a few years ago as AALS President.  You should sit down with a cup of tea and enjoy the whole piece.  Here is a selection:

When a school stages a commencement program, it is a participant in the free market of ideas. Institutions can participate in that market just as individuals can. Think of the intellectual movements we associate with particular universities: the Chicago School of Economics, the Yale School of Literary Theory (Jacques Derrida), the Cambridge School of the History of Political Thought (Quentin Skinner, J.G.A. Pocock, Peter Laslett), the Oxford Movement of Anglicans to the Catholic Church (John Henry Newman, Gerard Manley Hopkins, Ronald Knox), the Wisconsin Tradition in Legal History (James Willard Hurst, Lawrence Friedman, Robert Gordon).

Universities promote intellectual movements like these by hiring certain faculty and not others, by attracting graduate students interested in certain fields of study and not others, and by sponsoring lectures and conferences on certain subjects and not others. It’s the same with commencement programs. If Michigan State wants to deliver a message about the unfairness of affirmative action, it might invite Ward Connerly. If the Catholic University of America wants to deliver a message about the sanctity of life, it might invite Cardinal Timothy Dolan.

When Montana State invites a minister to lead its graduates in prayer, it too is acting as a participant in the market of ideas. Even though it’s a public institution, it can stake out almost any position it likes. It is under no obligation to give equal time to competing ideas. (The president of the United States is a public official, and we expect him to promote an agenda.) Because it’s a public institution, though, the people have ultimate control over the messages it delivers. And in this matter of praying, the people have taken the position (in the establishment clause) that it can’t promote religion. It is a good thing to recall that God is with us in all our affairs; we should begin every undertaking by blessing his holy name. But we don’t want the government and its agencies superintending our devotions.

It would be a mistake to suppose that this rule (don’t endorse prayer) is an impediment to academic freedom. On the contrary, it is an exercise of academic freedom. In the world of higher education there are different schools of thought on the subject. Americans take one position. The English take another. At Oxford University commencements the Vice Chancellor touches master’s and doctoral candidates on the head with a Bible and admits them to rank “in the name of the Father, of the Son, and of the Holy Ghost.”

And even at American graduations, students, faculty, parents, and alumni are free to pray on their own. As I said earlier, the free speech clause protects private speech from government interference. When public schools speak, they may (indeed, must) be neutral on matters of religion. But they can’t impose that point of view on other speakers.

Catholic schools like Notre Dame and Georgetown are also participants in the market of ideas when they stage commencements. In a culture like ours, where abortion has become a form of birth control, it is a welcome contribution to the free market of ideas when a school delivers a pro-life message at graduation. The AAUP suggested that Notre Dame had a duty to “protect and model free inquiry and open dialogue” by honoring someone who condemned the pro-life message. That’s an odd—I would say surprising—position to take for an organization devoted to academic freedom. Notre Dame might protect open dialogue by allowing its students and faculty to take a variety of positions. It would model academic freedom by regulating with a light hand. But to say that the school is obliged to temper its own speech by endorsing contrary ideas is the essence of censorship.

In the piece, John raises several examples of religiously affiliated and unaffiliated universities making decisions about student groups.  He argues that the key distinction is between the public and the private: Georgetown, CUA, and Vanderbilt are different cases than UC Hastings.  For a somewhat contrasting view about the importance of the division between public and private higher education, see Paul Horwitz’s institutionalist take in his new book, First Amendment Institutions.  My own view about the endorsement “test” as an Establishment Clause standard is more negative than John’s.  But–quite apart from the constitutional context–he makes many insightful points about the nature of endorsement and the meanings that we reasonably ascribe to “official” action by institutions of higher education.

And do see the St. John’s Journal of Catholic Legal Studies’ recent collection of essays addressing the question, “Whom Should a Catholic Law School Honor?”