Holiday Display Post

For a long time now, I have read (and now listened to) holiday related Supreme Court cases during the Christmas season.  Some time back, it required a trip to the library to obtain easy access to opinions like the classic County of Allegheny creche/menorah/tree case.  Now, it is easily obtainable, including lower court opinions (there being a lot) that go back at least to the 1970s.  

[Since I'm a nerd and all, this was edited, and I will later on provide at least one more post, after doing some following of links related to a 1980s display case.  The lower court opinions are to me rather interesting.]   

See here for one extended discussion by me. I need not repeat myself too much.  As I said there, Justice White had an interesting take on things -- in an early case involving Missouri (later popping up in the Trinity Lutheran case) wanting to uphold a strict separation even as to religious organizations on college campus (rejected with him alone dissenting), White said he would allow discretion in both directions. 

He flagged something that actually came up years later -- religious groups that blatantly sought to use schools etc. for church services.  OTOH, his drawing the line at "worship" in that case suggests his way does not quite settle what happens when the government allows freestanding displays, but wishes not to allow a freestanding (no person there) creche or something.  I would allow the state to at least decide to do that, which was not how the Supreme Court wound up handling things. 

But, check that earlier entry for a wider discussion.  The proper dividing line -- as seen in the recent case on Thanksgiving -- when regulating things that touch up religious exercise again is in dispute. Before, the common approach was to treat it as a free speech matter.  If you open up a "forum" for something, you could not treat religious groups differently, even if it involves collecting money for a club that puts out a proselytizing publication.  At some point, I found that artificial.  

[Religion is singled out in the First Amendment. In two directions. Religion can be part of other provisions, but to cite the Bible and Dickens as both forms of expression is a tad simplistic. So, yes, if a  public school decides religious instruction of seven year olds in after school programs are a bit different from secular programs, it very well might be okay to do so.]

Religion makes things more complicated.  But, these days it is straight out concerns about free exercise, including pushing for special dispensations.  Again, religion has complexities ... up to a point. A public accommodation can be required to follow civil rights laws, even if the owner has a religious motive not to serve black people.  I'm starting to respect more the dissenting opinion in the Sherbert v. Verner, which argued the government can allow a religious exemption to work requirements when handing out unemployment insurance, but it isn't somehow constitutionally mandated.  At the very least, the individualized benefit there is logically treated different. See also, Oregon v. Smith.  

Statutory exemptions as well as civil rights laws are prime ways free exercise of religion is promoted. In this country, however, there is a great belief that there is also a range of constitutional liberty that is protected by the courts above and beyond that.  Free exercise of belief, a hands off policy for religious organizations and making sure laws are generally applicable (a term that pops up in the Amish case in the 1970s, Wisconsin v. Yoder) are three basic ways it is upheld.  

A fourth is something we take for granted -- people freely get to express their religion in a myriad of ways without it be targeted not only selectively (discrimination) but in a more general way.  France has a more strict policy of secularization and we can imagine merely wearing religious apparel or a small cross while in a public job would be deemed inappropriate.  General applicable laws very well might somehow include that sort of thing, again if civil or criminal law is a general approach toward regimental program or something.  But, as seen in the first set of Supreme Court cases in the "modern era" involving Jehovah Witness proselyting in public, the restrictions often are selective in form or effect.  Overall, in lots of ways, religion is not at risk to be taken from the public square though that is repeatedly (up to the current day) a straw-man offered. 

The trick comes when neutral regulations of religious acts are involved, particularly religious acts that cannot be framed as speech or association.  At least on the Supreme Court level, the one case where this popped up in which the justices allowed a special dispensation involved letting the Amish take their children out of school after the eighth grade, not at sixteen.  The case involved only seven justices, two vacancies being handled, and Douglas worried that the wishes of all of the children were not being confirmed.  Three other justices were wary but figured the exemption was minor (basically two years of schooling) and the Amish case strong. 

The majority opinion tossed in various details including the long time existence of the Amish and the fact that traditionally children work on farms (major reason for compulsory education to avoid child labor) anyway.  There was enough hedges, including how education and parental involvement there itself factors in [if not quite the "hybrid" right argument used to handwave it in Smith] to make it not enough to settle all questions involving religious based actions that violate generally applicable laws.* 

Plus, the Amish's case was not really as strong as all that -- why couldn't they set up a private vocation school, one a bit more than the three hours a week of ordinary subjects their side while negotiating offered as an alternative.  And, their religion would not be somehow destroyed if the children had to go to two more years of school. Traditionally, the "elementary" education they support was a lot less intense than what even in the early 1970s arose in junior high.  This isn't quite denial of a sacramental drug akin to denial of use of communion wine in a dry county.  

As I noted in the summary referenced earlier, line drawing in these cases often is not exact, but sensible lines still came be made even if they might not be as clean as some would like.  The trickiness suggests that religious exemptions often should be a policy question, which like much policy does not trivialize the importance of the subject.  Plus, as cited above, certain specific areas would go above all that. General employment laws does not make hiring only male priests an actionable civil rights violation.  That very well can mean unfair treatment.  But, even there, basic employment rules for church employees can be set forth.  Safety laws deemed ungodly can be enforced.

Anyway, with the Barrett Court, I look for a case to be taken to clarify religious displays, and not just longstanding ones.  The status of a newly established holiday display very well might be clarified at some point.  I still find the separatist approach sound, even if only Sotomayor is left that might hold true with Breyer and Kagan going along at times as seen in Town of Greece invocation case. Let's see how much of a mess develops.

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* I am sympathetic to the dissent in the peyote case, especially taking everything into consideration.  Religious practice very well includes acts that sometimes might be regulated in some fashion and religious liberty respects that we do not officially wrongly favor some in the process. 

Given the range of religions, this can be very tricky if honestly and consistently done.  Problem is that this often s not done, including by those who proclaim RELIGIOUS LIBERTY AT RISK. A good approach in these cases is to try to avoid a major decision, a sort of in between approach. Not reach out like the Supreme Court did (then and now).  This very well, to be honest about it, probably includes some things that I rather not authorize.  Or, at least, as I have said, recognize there are degrees. "In God We Trust" very well is problematic.  But, it isn't the same as crafting a full prayer.

The state court treated Oregon v. Smith as an unemployment benefit case and that is really what it was.  Oregon did not enforce its peyote laws.  The general applicable law very well made it sensible to give the state some more discretion, but taking everything into consideration, including the fact that a core religious function (sacrament) was at stake, the result was easier than Yoder.  And, RFRA (and more?) was the (over)reaction.