Posted on by Marc O. DeGirolami

Does Yoga Violate the Establishment Clause?

Here’s another item in the occasional series, “Does it violate the Establishment Ganesh with cupcakeClause?” whose last entry concerned werewolves and crusaders.  Given the state of Establishment Clause doctrine on this particular set of issues, I’m confident that I’ll be getting lots of material for it.

This story reports that the President (or those close to him, or something) really goes in for yoga, and so the President’s Council on Fitness, Sports, and Nutrition is making a pro-yoga pitch, which included the introduction of a yoga garden during this year’s Easter Egg Hunt where one could receive yoga pedagogy.

But there is a problem.  Some believe that the official state promotion of yoga–in public school, for example–violates the Establishment Clause because it is tantamount to the government “picking religious winners and losers.”  The story reports:

[The lawyer representing objecting families] said many Americans who practice yoga want to be viewed as spiritual but not religious. However, claims that yoga is a mere physical exercise that doesn’t cross the line to Eastern religious beliefs and practices are dubious at best . . . . [Y]oga poses are worshipful acknowledgements of Hindu deities and have been shown to have a religiously transformative impact.

“Let’s be honest, if the White House was actively promoting a Christian-based exercise program, I am confident there would be a huge public outcry and they would change the program. But because yoga is based in Eastern mysticism, which is not well understood, many tend to try to disingenuously downplay its religious aspects[.]”

It’s hard to argue with the government’s response: whatever your religious beliefs, everybody benefits from “stretching, strength-building, and breathing.”  But the best line belongs to the judge assigned to hear the case, who is himself a devout yoga practitioner (or is that yogi?).  When questioned about his yoga activities, he is said to have responded: “Does anybody have a problem with that? . . . .If you think there’s something spiritual about what I do, that’s news to me.”

Easter Egg Hunt, take note.

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Astoria on The Endorsement Test and Equal Status

Ross Astoria (U. of Wisconsin, Parkside) has posted The Endorsement Test and Equal Status. The abstract follows.

Since its inception, jurists and legal scholars have hotly contested the utility and fairness of the endorsement test. For its detractors, the endorsement test is unanchored in the constitutional text, devoid of limitations on the exercise of judicial power, and accordingly produces misguided outcomes. In contrast, its remaining adherents think the endorsement test expresses the basic democratic value of equality, and therefore find it worthy of preservation.

This paper is an attempt to reinvigorate the endorsement test
by more concisely articulating the relationship between endorsing and equality. As the endorsement test is presently conceived and employed, however, this relationship is oblique at best. In order to foreground equality, then, the endorsement test requires significant modification, which I propose in Section III. The primary purpose of these modifications is to assign to the norm of equal status the central role in Establishment Clause jurisprudence, particularly in those cases conventionally dubbed “display cases.” As far as I can tell, this is a new approach to religion clause jurisprudence. To test the modified endorsement test, I tease out its implications by applying it to several cases and scenarios.

In what follows, I first introduce the norm of equal status by
comparing it with other norms which religion clause theorists often take as salient (Sec. II). I then introduce the modification to the endorsement test, showing in the process how the endorsement test, as presently conceived, fails to foreground the norm of equal status (Sec. III). Finally, I apply the modified endorsement test to several common display case scenarios (Sec. IV). In the conclusion, I say a few things about the superiority of the modified endorsement test (Sec. V).

Posted on by Mark Movsesian

The Becket Fund’s Cert Petition in the Wisconsin High School Graduation Case

Last summer, the Seventh Circuit ruled, en banc, that a Wisconsin public high school could not hold its graduation ceremonies in a rented Evangelical church sanctuary. To do so, the court ruled, posed too great a risk of government coercion, proselytism, and endorsement of religion. Three judges–Easterbrook, Posner, and Ripple–filed blistering dissents, the sort that often result in Supreme Court review.

The Becket Fund has filed a cert petition on behalf of the high school; Stanford Law Professor Michael McConnell appears on the petition as counsel of record. You can read the petition here. The Supreme Court is expected to announce whether it will hear the case, Doe v. Elmbrook School District, later this month. The case would give the Court an opportunity to clarify (or discard) its much maligned endorsement test. For my reflections on the issues the case raises, please click here.

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Strasser on the Establishment Clause

Mark Strasser (Capital University Law School) has posted The Endorsement Test is Alive and Well: A Cause for Celebration and Sorrow. The abstract follows.

The endorsement test, first explained by Justice O’Connor, provides one way to determine whether state action violates Establishment Clause guarantees. Now that Justice O’Connor has retired, there is some question whether the endorsement test will survive. Commentators’ claims to the contrary notwithstanding, however, there is no reason to think that the endorsement test retired along with Justice O’Connor, although a separate issue is whether those on the Court using the test will do more than give occasional lip service to the interests and perspectives of minority religious groups. At this point, the most likely scenario is that the Court will sometimes use the test, but will be unlikely to use it to strike down a particular practice. The article concludes that the test is likely to remain one of the tests used by the Court to determine whether Establishment Clause guarantees have been violated — the test will retain its potential to assure that individuals will not be treated as second-class citizens because of their religious beliefs but will in reality do little or nothing to take account of religious minorities’ sincere reactions to a variety of practices privileging some religions over others and privileging religion over non-religion.

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Government Nonendorsement

Warm thanks to Marc DeGirolami and Mark Movsesian for including me this month.  I am looking forward to participating in this terrific forum.

It is often said among scholars of religious freedom that there is no secular Establishment Clause.  When the government speaks, according to this view, the only real constitutional restriction is the rule against religious endorsement.  So while public officials may not declare that “America is a Christian nation,” they may endorse environmentalism or denigrate smoking.  Religion has special constitutional status in this area, or so it is often assumed.

Likewise, scholars and judges writing about free speech commonly say that the only enforceable restriction on government speech is the rule against religious endorsement.  In the Summum decision, for example, the Supreme Court reiterated that the Speech Clause simply does not apply to government expression, and it implied or assumed that the only other constitutional restriction on official endorsement of ideas is the Establishment Clause.

Is this assumption—which is commonly repeated, although not commonly interrogated—actually correct?   In a draft article available on ssrn, I argue that it is mistaken.  In fact, government speech is properly limited in multiple situations by multiple constitutional doctrines, rooted variously in equal protection, due process, and free speech itself.   To take only the most obvious example, it would be unconstitutional for the government to declare that “America is a White nation,” even if that statement carried no material consequences.  In the piece, I give additional examples concerning electioneering, same-sex marriage exclusions, political gerrymandering, and messages about reproductive decisions.  From these examples, and from the principles supporting them, I derive a constitutional theme called government nonendorsement.

I also draw out implications of this argument for theoretical debates over political morality, free speech, and religious freedom.  With regard to the last, the principle of government nonendorsement bears on the pressing question of whether religion enjoys special constitutional solicitude.  Mostly, my argument supports the position that religion is not special, but it also leaves room for the possibility that some constitutional values barring government expression on religion do not have secular counterparts.

Posted on by Marc O. DeGirolami · 3 Comments

Ignorance, Offensiveness, and the Constitution

The recent dispute involving the family whose petition to change its last name to ChristIsKing was denied is interesting on several levels.  As I noted here, it was claimed by the court that compelling a representative of the government to say, “ChristIsKing” (or other phrases like “JesusIsLord”) would violate the Constitution.  In the earlier post, I speculated about whether names like Theophilus or Christopher would likewise violate the Establishment Clause, and someone commented that the difference is that ChristIsKing is a creedal assertion while Theophilus or Christopher is not.  That seems also to be the distinction made by the judge, who was concerned about the “offensiveness” of proclamations by agents of the state with respect to some theological proposition.

Setting aside the issue of why creedal assertions should be more objectionable for Establishment Clause purposes than other sorts of religious assertions, I suspect that’s not what really explains the court’s decision.  First, Theophilus and Christopher are creedal assertions, at least of a kind: they depend on theological or Christian assumptions.  To name someone Theophilus is to assume that there is a God to be loved; and to name someone Christopher is to assume that there is a Christ to be carried.  Those are theological propositions.  Second, I am dubious that a municipal clerk or other government agent who was required to say the name ChristIsKing in any official capacity would be reasonably perceived as endorsing any creedal proposition.  Think about a court clerk who, say, is calling the name of a criminal case: “Next up on the docket is the United States of America v. Joseph ChristIsKing, docket #12-1593510A.”  It would be highly peculiar to believe that the clerk was stating a creedal proposition sponsored by the government.  Third, suppose the court clerk said this: “Next up on the docket is the United States of America v. Joseph Christus Rexmundi.”  I doubt that anybody would bat an eye.  And yet the creedal assertion in this last name is that Christ is king of the world.  So why the difference?

The difference has to do with common cultural ignorance or ordinary cultural associations.  One of the more curious things about the endorsement test as the Establishment Clause standard is that it depends on what a reasonable person would perceive.  The reasonable person is a famously problematic concept in the law, so it is no surprise that it has had such contested results in this area.   One of the special quirks that Establishment Clause cases have brought to the age-old problem of the reasonable person is that sometimes, the test for a reasonable person’s perceptions can look very much like the test for an ignorant person’s perceptions.  I remember a case from a couple of years ago out of the Third Circuit, Stratechuk v.  Board of Education, 587 F.3d 597 (3d Cir. 2009), which involved a misguided school policy prohibiting the singing of “celebratory” religious music at school-sponsored events.  The administration of the policy was baffling: the Martin Luther King Gospel Choir was prohibited from performing at the December concert, while the performance of Vivaldi’s Gloria in Excelsio (cum sancto spiritu) was permitted because the music “does not have a religious orientation and does not refer to a holiday.”

A parent’s claim that the exclusion of certain kinds of music violated the Establishment Clause was, in my view, properly rejected by the Court.  But with a small tweak of the facts, we can see the odd ways in which the endorsement test might cash out.  Suppose the district had banned the performance of all religious music at school throughout the year and no matter the context, because it wanted to avoid the appearance of endorsing religion.  And suppose it had permitted the Vivaldi piece, but excluded everything else, giving as its reason that “Gloria in Excelsio (cum sancto spiritu)” “does not have a religious orientation[.]”  This is of course untrue, but for purposes of the endorsement test, that hardly matters.  What matters is whether a reasonable person would perceive the endorsement, and because many people wouldn’t have perceived it in the piece by Vivaldi, it satisfies the test, while Frosty the Snowman (whose “religious orientation” is, to put it gently, attenuated) and the MLK Gospel Choir don’t.

Something similar is going on in the name change case.  Theophilus and Christopher are not endorsements — and therefore unconcerning to the court — because most people wouldn’t perceive them as endorsements, because most people either don’t know what they mean or don’t associate that knowledge with the name itself (any longer).  But they of course do carry highly theologically charged messages — messages which few people perceive.  If they did perceive those messages, perhaps they might be more offended (as I’ve said before, this whole area of the law is riddled with judicial arm-chair psychology about what offends people, but set that aside).  ChristIsKing carries a theological message which is much more commonly perceived, and whose putative offensiveness is therefore, presumably, much more commonly experienced.  And so the endorsement test seems to trade — at least in these cases — not so much on the divide between the religious and the non-religious, as on the divide between knowledge and ignorance.

Posted on by Marc O. DeGirolami · 6 Comments

Does the Name “Theophilus” Violate the Establishment Clause?

The name, Theophilus, means “Lover of God.”  And various important persons have been named Theophilus: Saint Theophilus of Antioch, Theophilus Parsons (about whom our friend Don Drakeman wrote), and the Romantic poet Théophile Gautier are three that come immediately to mind.  [UPDATE: Mark reminds me that the Gospel of Luke is addressed to someone named Theophilus: “Forasmuch as many have taken in hand to set forth in order a declaration of those things which are most surely believed among us, Even as they delivered them unto us, which from the beginning were eyewitnesses, and ministers of the word, It seemed good to me also, having had perfect understanding of all things from the very first, to write unto thee in order, most excellent Theophilus, That thou mightest know the certainty of those things wherein thou hast been instructed.”  Luke 1:1-4.] 

I was thinking of all of these theo-philes as I perused a recent decision by a Richmond County judge here in New York, in which the court denied a petition by a family which wanted to change its last name from Nwadiuko to ChristIsKing (a few years back, the father’s petition to change his son’s name to JesusIsLord had also been denied but it seems was later accepted; something similar happened with the father’s petition to change his daughter’s name to Rejoice).

The judge in this case denied the application for the reason that he believed it would violate the Establishment Clause. 

To permit this name change would be placing unwitting members of the public including public servants in the position of having to proclaim petitioners’ religious beliefs which may or may not be in agreement with that person’s own equally strongly held but different beliefs.

For instance, a calendar call in the courthouse would require the clerk to shout out “JesusIsLord ChristIsKing” or “Rejoice ChristIsKing.” Other litigants would not necessarily know whether the clerk was reading the calendar or making some religious statement in violation of the separation of church and state. A similar situation would occur in the classroom setting. Not only is the speaker being forced to say something which might be repugnant to the speaker but the general public would be subjected to this unwanted intrusion of the petitioners’ religious beliefs. What would be people’s reaction to hear the petitioners’ being paged at an airport or some other public event?

But how was this a violation of the Establishment Clause?  The court relied on the “inoffensiveness” test (the court may be forgiven for rechristening the endorsement test), citing to McCreary County v. ACLU, as well as to several other Establishment Clause cases, for the proposition that “permitting the petitioners to use the statutory process to effectuate a name change would involve the same prohibited entanglement especially because they could avoid the potentially offensive conduct by employing the equally available legally recognized common law right to achieve that purpose.”

The court also purported to distinguish first names like Jesus because such names do not state a contestable, and therefore offensive, religious proposition:

A review of those names however, reveals a significant difference between their origin and what the petitioners’ are advocating. Almost all of these names, most of which have “El or el” in them, a word which in Hebrew refers to “God,”or contain words that are accepted as the equivalent of “God” and both of which are modified by other words which describe what are accepted as the attributes of “God.” Just about every culture throughout history has had some concept of “God” or “gods.” What petitioners are advocating is a name that is a statement that a particular person is “Lord” or is the “King.” This is a position which is not only offensive to persons who are not Christians but also to those who look to God a being gender neutral and not a male figure.

Frankly, this reasoning is rather odd.  Why should the offensiveness to those who believe that God is gender neutral be a special concern of the Establishment Clause?  What is the distinction between calling someone God, or lover of God, or “bearer of Christ” (which is the meaning of Christopher) and calling them JesusIsLord?  Are not both contestable and possibly offensive propositions?  And is it really true that people would be offended as a matter of gender neutrality because somebody decided to call himself “JesusIsLord”? (I am reminded of Judge Posner’s cogent criticism that this whole area is bespattered with the random armchair empirical guesswork of judges who know next to nothing about what people actually find offensive).

It may well be that government ought to deny petitions like this — in fact, I think it’s perfectly reasonable to do so in certain circumstances that have absolutely nothing to do with the Establishment Clause.  Not everything that is silly and therefore eminently regulable needs to be unconstitutional too.  If there is a common law right to change your name, and the court does not wish to issue a judicial order with respect to the name change, then that ought to be sufficient to dispose of the case.

Posted on by Mark Movsesian

Get That Cross Off the City Seal

Once again, we’ve hit the silly season for objections to religious symbols. This week, in response to a threatened lawsuit by the Freedom from Religion Foundation, the city of Steubenville, Ohio, decided to revise its official seal (left) to remove the silhouette of a local landmark, the chapel on the campus of Franciscan University. You see it? Take your time, it’s over there on the right. The problem was the cross on top of the chapel. According to FFRF, its depiction amounted to an establishment of religion under current Supreme Court case law, which forbids government from endorsing religion. Someone suggested depicting the chapel without the cross, but FFRF apparently objected to that, too. So, rather than face an expensive lawsuit it figured it would lose, the city caved and restored an older version of the seal (below). The old seal avoids endorsing religion, though it does seem to endorse wooden forts.

I’m not sure the city was correct in estimating its chances. True, many lower courts have ordered the removal of crosses from city seals under the endorsement test, but the cases are very fact specific. The key question is whether a reasonable observer would see an official endorsement of Christianity, rather than a reflection of a community’s history. For example, the Tenth Circuit held a few years ago that the city of Las Cruces, New Mexico, could retain crosses on its seal in light of the Read more

Posted on by Mark Movsesian

Yesterday’s High School Graduation Ruling: Three Quick Observations

As Marc notes below, the Seventh Circuit handed down what could be a major Establishment Clause case yesterday, Doe v. Elmbrook School District. The case involves a Wisconsin school district’s decision to hold public high school graduation ceremonies inside an Evangelical church sanctuary. Relying on three different tests found in the Supreme Court’s Establishment Clause jurisprudence — the endorsement test of cases like McCreary, the coercion test of Lee and Santa Fe, and the no-proselytism test of Stone v. Graham — the Seventh Circuit ruled, en banc, that the ceremonies violated the Constitution. Here’s a good summation of the reasoning from the decision itself: “An unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbook Church.” 

The case contains three strong dissents, including a not-very-thinly disguised cert petition by Judge Ripple and two quote-worthy excoriations of the Supreme Court’s Establishment Clause jurisprudence by Judges Easterbrook and Posner.  I’m not sure the Court will actually grant cert, and if it does, I’d have to guess that Justice Kennedy, frequently the swing vote in Establishment Clause cases, would agree with the Seventh Circuit’s reasoning about coercion, anyway. But there’s a lot in the case to think about. I’d like to make just three quick observations here:

• Neutrality: the case makes clear that “neutrality,” both among religions and between religion and non-religion, remains the “touchstone” of Establishment Clause jurisprudence. In theory, the Supreme Court’s Read more

Posted on by Marc O. DeGirolami

Seventh Circuit: Holding a High School Graduation in a (Richly Iconographically Religious) Church Violates the Establishment Clause

The Seventh Circuit has come down with a ruling that holding a public school graduation in a church violates the Establishment Clause when the church has an indeterminate number of religious icons and other material which run afoul of the standards that the Supreme Court has encrusted on the Establishment Clause.  It was undisputed that the choice to hold the graduation in the church was made for the sake of convenience, price, and accommodation of the large number of students, and not for any religious reason.  It was also undisputed that no reference was made to religion during the graduation ceremony.

Do read Judge Ripple’s sensible, moderate, and absolutely convincing dissent.  But by far the most pungent lines appear in Judge Posner’s dissent — and boy are there a lot of them.  Taking the prize:

The best that a judge of determined neutrality faced with a case such as the present one can do is to be guided by Gibbon’s aphorism (from chapter 2 of the Decline and Fall) that “the various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.” For “the Roman world” substitute “the United States” and for “the magistrate” substitute “the judge” and one has the right starting point for the analysis of this case. The judge should not be concerned with the truth or falsity of any religious faith but should regard the various faiths as “equally useful” from the standpoint of society, in recognition of the importance that Americans attach to religion, the diversity and intensity of their religious beliefs and observances, and the bitterness and strife that the government’s taking sides among competing faiths would engender.

Other memorable lines from Judge Posner’s dissent:

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