The editorial page of the New York Times has come out in favor of Judge Richard Stearns’s decision in ACLU v. Sebelius.  The editorial is entirely bereft of legal analysis, other than offering the obviously heartfelt but otherwise unilluminating view that the opinion  is “sound.”  The editorial concludes with this:

The sound ruling could have implications for the faith-based initiative begun by President George W. Bush and continued under President Obama by calling into question the dubious notion of giving churches and other groups wide latitude to use public money for their religion-based social service programs.

I am not sure whether this was intended seriously or not, but on the assumption that it was, I’m afraid it is sorely, wildly mistaken — indeed, positively “dubious” as a legal matter.  On no plausible understanding of the Establishment Clause could the activity of distributing public money on a neutral basis to organizations which perform secular functions with religious motivations violate the Establishment Clause, at least not as the Clause has been interpreted by the Supreme Court, or as a matter of historical practice, or as a matter of tradition, or by any other constitutional methodology that has any serious adherents.  The claim is sufficiently extraordinary to motivate me to create a special new tag, “The New York Times on the Religion Clauses.”

Norton on Using an Establishment Clause Analysis for Free Speech Claims

Helen L. Norton (University of Colorado School of Law) has posted The Equal Protection Implications of Government’s Hateful Speech. The abstract follows.

Under what circumstances should we understand government’s racist or otherwise hateful speech to violate the equal protection clause? Government speech that communicates hostility or animus on the on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties’ discriminatory behavior, deter its targets from certain important behavior, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms potentially posed by such government expression. The recent emergence of the Court’s government speech doctrine — which to date has emphasized the value of government expression without yet fully addressing its potential costs — offers an important new opportunity to consider the situations in which government speech might offend equal protection values.
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The Indiana Statehouse Chapel

Last week, I spent a couple of days in Indianapolis at a roundtable on law and the Protestant Reformation directed by my friend and sometime co-author, John McGinnis of Northwestern. During a break, I walked over to the Indiana Statehouse where, much to my surprise, I discovered the Indiana Chapel — that’s its official designation, though the sign on the door (right) says “Meditation Room” — on the fourth floor. It is apparently the first statehouse chapel in the United States, and one of only six, the others being in statehouses  in Arkansas, Florida, Illinois, Kentucky, and Texas. The chapel is a small room without sectarian symbols; to me, it resembles a Victorian parlor. There is, nonetheless, a Protestant feel to the room, no doubt created by the lectern at the front with a King James Bible, the hymnal on the electric organ, and the bookcase filled with Bibles, presumably for the  Bible studies advertised on a bulletin board outside the door (below). According to this website, a private evangelical Christian group called the Capitol Commission of Indiana regularly uses the room, though it doesn’t seem other groups are excluded. I don’t know if anyone has ever thought to bring a lawsuit about the Indiana Chapel, but, assuming the room really is open to everybody on an equal basis,  I don’t think an Establishment Clause challenge  would succeed, either under the Lemon/endorsement test or Marsh v. Chambers, the legislative chaplain case. In 1988, the Seventh Circuit held that a similar non-sectarian chapel/meditation room in the Illinois state capitol did not violate the Establishment Clause.