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Religious Worship in NYC Schools, Endorsement etc.
[Mirror of Justice blog cited below covered the upcoming legislative prayer case as did liberal leaning Dorf on Law]
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).
The post reports the matter, takes time to criticize the endorsement test as resulting in an "infinite regress of subjectivity" and noting that a statement that "the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties" is correct.
I did not read the cited book, but without more, it is simply misleading to cite what they thought in 1791 on the matter. Public schools were in their infancy and the the public school movement that led to big city schools like the one here was some time in the future. It is readily granted that public buildings, even the Capitol, partially given a limited availability of public spaces at the time. But, that is quite different from what is accepted today, particularly telling New York that it has to let religious institutions have religious services on public schools, schools there to join everyone together.
The resolution addresses legislation that can affect extended litigation which in the developments went against the church in question. The basic subject matter was covered in The Good News Club, more from me at the link. Suffice to say, it probably is a close case, which might explain why the justices did not grant cert when given the chance. I am with the NYT and the minority of the City Council (including Christine Quinn, frontrunner to replace Mayor Bloomberg) that it is a bad idea to change the law, especially if the result is to uphold the practice at issue. The limited nature of the holding, especially given current case law:
The Bronx Household of Faith, a small congregation with about 50 members, has been meeting in P.S. 15 rent free for almost a decade as the result of the lower court’s order in the case. Many other churches have similarly taken over New York City schools on Sundays long-term. Church members post church signs, distribute flyers and proselytize outside school buildings. Under the terms of the policy, community groups, including religious ones, could still use the schools for lectures, meetings and other events on religious topics.
This is not simply about religious clubs or afterschool activities, but letting certain religious groups take over school grounds to hold religious ceremonies, which is not surprisingly seen as a ripe for controversy by the Board of Education. This leads me to the comment about how the Endorsement Test has led to "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 violates the Establishment Clause." This really annoyed me, especially on a blog that seems to be full of people who are fine with such expansion of the Free Exercise Clause so that even general laws against discrimination are problematic.* The endorsement test was created by Justice O'Connor:
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.
[citations removed] This was a gloss on the Lemon test:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion."
The "endorsement test" therefore is a means to put a gloss on the first two parts of the test and in O'Connor's hands repeatedly has resulted in acceptance of some things that many supporters of Lemon would oppose (her test itself was expressed in a case upholding a creche display, 5-4) though she took a middle position that would disallow more things than its strongest critics on the conservative side (e.g., she was on the dissenting side in one Ten Commandments case, while Breyer was the fifth vote). The test is at times criticized, like many of her tests, as subjective. Personally, I think such concerns arising from her pragmatism are a tad unrealistic -- these controversial cases over the years repeatedly turn on close issues that often involve such swing justices relying on what appears to be subjective grounds.
The link provided in the blog also cited language in the Bronx Household of Faith case concerned with appearances, not violations of the clause itself. Seems like a play on words. If the policy is struck, it has to be in some fashion on the grounds of constitutional violation. This is so even if it is sort of a "penumbra" violation, that is, not a direct violation, but a violation of its spirit. The activity "advances religion" in a particular way that violates the Constitution, including by sending the message that the government is endorsing religion, particularly certain kinds, given that only certain religious groups will take advantage of the policy.
If the appellate court used the wrong language to make the point, fine, but so what at the end of the day? It is truly curious and wrongheaded to think the matter "utterly bogus." There is something quite important in taking the effort to not appear to be doing something wrong. The appearance of impropriety can by itself cause problems. Here, it involves the government making an effort not to do things that will help or hurt certain religions over others. Why is this not part of what the religion clauses are all about? At worse, it is a debatable application. This is even more true if some reference is not used in a vacuum, but in the context of the question as a whole, which is how the endorsement test as a whole should be so applied. Something like that also arose elsewhere.**
Finally, I find it somewhat curious for a Catholic leaning blog to be supportive of the measure as a whole. Jesus instructed people to pray in private. Having certain church groups take over public schools to hold religious ceremonies seems to violate that sentiment (more so the legislative prayer case granted cert.). Such things should be done privately or at least in the proper places such as churches or the like. Treating a public school like any old public forum akin to a park or something to me is not required by constitutional law or Christian practice. Anyway, if endorsement rules bother you, use the Lemon Test unadorned though you might like the possibly more strict result.
* A major issue here has been requirements under PPACA for employers to provide contraceptive coverage as part of the insurance package required under the terms of the law. The NYT had a helpful article explaining how various Catholic institutions provided such coverage to many of their employees (here pursuant to union rules and state law), a means to address the half-truths provided by critics that act like the PPACA mandate somehow is this novel menace to religious liberty.
A useful comment by Justice Douglas in his concurring opinion to Lemon v. Kurtman, citing a 1899 case:
The government may, of course, finance a hospital though it is run by a religious order, provided it is open to people of all races and creeds. [cite] The government itself could enter the hospital business, and it would, of course, make no difference if its agents who ran its hospitals were Catholics, Methodists, agnostics, or whatnot. For the hospital is not indulging in religious instruction or guidance or indoctrination.
This is basically what is involved in the PPACA -- the government is regulating health care via public accommodations and the tax power. Religions do not just want to join with others and not be singled out, but they want to single out, burdening the rights of employees and customs in the process. And, not just for ministers or the like. People like nurses or janitors, who would normally have basic benefits elsewhere.
** I think missing the forest for the tree is seen here, where a comment by me led to a rather tedious targeting of a passing comment -- made worse by merely quoting a short excerpt -- in a separate decision by Stevens. Meanwhile, in comments, he shows more respect to application of the "activity/inactivity" rule by CJ Roberts in a discussion that seems to now be the law of the land. At most, Stevens took one form of "respecting" too far, but it was just a passing comment. And, as I noted in comments, even there, the OP goes too far in its criticism.