Litigation Update: Ten Commandments in Public Schools

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Welcome to fedsock Forums, a Federalist Society podcast. I'm Elizabeth Lattery,
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vice president of Practice Groups. Be sure to subscribe wherever
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you get your podcasts so you won't miss an episode. Now,
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please enjoy today's conversation.
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Good afternoon, everyone, and welcome to fedsock Forums. Today's discussion
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is a litigation update concerning a Texas law requiring public
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schools to display a copy of the Ten Commandments in
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the classroom. My name is Libby Dickinson, and I'm an
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associate director with the Federalist Society's Practice Groups. As a reminder,
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all opinions it's expressed are those of our speakers and
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not of the Federalist Society. Our moderator today is Joe Davis,
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senior counsel at the Beckett Fund for Religious Liberty. If
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our audience has any questions throughout the webinar that pertain
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to the topic at hand, please submit thementus zoom's Q
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and a feature located to the bottom of your screen,
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and not the chats that we'll be able to access
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them later. With that note, I will turn things over
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to our moderator to start today's conversation.
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Joe, Thank you. So much for joining us today.
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Thank you, Livy, and thanks so much for inviting me
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to moderate this discussion about this important new decision from
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the Fifth Circuit interpreting the establishment clause and really grappling
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with the original meeting in a way that I think
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will be very.
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Interesting to our listeners here today.
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I'm joined for the conversation by Professors Stephanie Barclay and
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Andrew Kapplman. So I'll just briefly introduce them, and then
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we'll kick it over them to give some sort of
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introductory remarks about how they do the case and to
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give the update, and then I might have some questions
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for them afterward, and then we'll open it up to audience.
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Q TOA. So, first off, Professor Barklay.
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Professor Stephanie Barclay is a professor of law, Georgetown Law
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School and the faculty co director of the Georgetown Center
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for the Constitution. Her research focuses on the role are
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different democratic institutions play and protecting minority rights, particularly with
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the intersection of free speech and religious exercise, and her
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work was actually cited by the majority in the on
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Bought Circuit opinion that we're here to discuss today, Indy,
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she got the honor of a here and after a
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short form after the first sight. Professor Kappleman as the
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John Paul Stephen's Professor of Law Professor by courtesy of
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Political Science at Philosophy Department, affiliated faculty at Northwestern University.
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His scholarship, folks, and on issues at the intersection of
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law at political Philosophy. He's written more than one hundred
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scholarly articles and eight books, most recently Burning down the
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House How libertary Philosophy was corrupted by delusion and greed.
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So I think we've knocked through the format and I'll
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just kick it over to Professor Barclay to get it
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started on the update on the Nathan versus Almo Heights
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School District case.
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Thanks so much, Joes the Federal Society, and thanks for
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Professor Andy Kaplman for doing this discussion with me. He's
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one of my favorite interloctors. So looking forward to our
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conversation today. All right, So, just to give a bit
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of a background about this case, Texas passed a law
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called SB ten that requires public schools and secondary schools
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to display a copy of the Ten Commandments in classrooms.
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It's just a passive display on the wall. A group
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of plaintiffs challenged the lot under the both the Establishment
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clause and the free exercise clause. After the three judge
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panel ruled, his circuit agreed to hear the case on bunk.
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All active members of the Fifth Circuit heard this case,
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and so this week, in Nathan versus almal Heights Independent
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School District, the Enbank Fifth Circuit upheld that law and
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staid that having the Ten Commandments being displayed in classrooms
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does not violate the Establishment claus.
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Judge Duncan was the author of.
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This majority opinion, and I think it was really a
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tourative force of founding your history and the original meaning
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of the Establishment clause of religion. He was joined in
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full or in relevant part by a Chief Judge l Rod,
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Judges Johnes, Smith's, Willett, Hoe, Engelhart, Oldham, and Wilson. So
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three things that I think it's worth keeping in mind
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that this opinion does clearly and unequivocally. First, the opinion
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reinforces what the Supreme Court told us in Kennedy versus
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Bumbrton School District, and that is that Lemon and its
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promin progeny, including cases like Stone versus Graham are dead letter.
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This is not the controlling law anymore for the establishment clause.
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For decades courts evaluated the assumption clause under that prong
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since the nineteen seventies. Before that, the court did a
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more historical approach, and so following Kennedy, the Fifth Circuit
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is making clear that we've returned to an approach that
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focuses on Founding era history. Today's opinion spells out that
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means Stone versus Graham, which was a nineteen eighty decision
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following women in applying women that struck down a kentuck
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Keee Classroom ten commandment statute, based on their analysis of
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the purpose of that law that was built on Leomen's scaffolding.
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It was applying women's purpose prong, and so once Lemon goes,
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Stone goes with it. The second thing is that this
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analysis is originalist. It's tied to the founding Judge Duncan
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is very clear that the Fifth Circuit isn't looking at
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any history at any time period. The most important history
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is the historical tradition tied to the ratification era. To
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understand what the establishment clause would have meant to the
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framers during that time period, and it forecloses reliance on
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something like mid twentieth century separationist assumptions as benchmarks for
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what the clause forbids. The third thing is that the
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court adopts what the Kennedy decision already laid out is
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the six hallmarks of an established religion as the operative
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framework for figuring out if some government action has violated
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the establi wlishment clause. Kennedy pointed to these hallmarks drawn
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from Michael McConnell's scholarship. They include government control over doctrine
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and personnel, compulsory church attendants, public financial supports, true taxation
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in a preferential way, restrictions on worship for outside for
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established faith, restrictions on civil and political rights of dissenters
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who aren't members of the established faith. Use of the
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established church for civil functions, particularly in a preferential way,
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is something that the Kennedy decision talks about. So the
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Fifth Circuit treats these as the operative tests for the
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establishment clause straightforward, and it was just a straightforward application
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of these hallmarks in this case to say that a
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passive classroom display, a passive religious display, isn't among the hallmarks,
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and here ave classroom display of Ten Commandments resembles none
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of the other hallmarks. It's not as though it is
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coerced religious observance or anything else of that nature. And
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so because it doesn't fit into any of those hallmarks,
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the court says that there's nothing to see here in
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terms of a prohibition by the establishment clause. It's a
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case worth reading in full. It's likely to become I
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think the leading lower court statement of the post Kennedy
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establishment clause framework.
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Thank you for that, Professor Berkley. It was really helpful
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overview of the opinion. It's the significance, Professor Kaupman, Did
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you want to see your piece?
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All right? The question before this court, for all the
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federal courts now is how the establishment clause has changed
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after Kennedy versus bremerton O case a couple of years ago.
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I won't collect the fact that the Court said that henceforth,
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we're abandoning the test of Lemon versus Kurtzman, and we're
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going to rely on history. And the Court's reading of
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history relied extremely heavily on the scholarship of Professor Michael McConnell,
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who wrote an article that enumerated the hallmarks that were
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just described by Professor Barclay, but the court in Kennedy
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left out some important points that McConnell made in his article.
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McConnell's can inclusion in the article was that an establishment
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is the promotion and inculcation of a common set of
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beliefs through government authority, and that the true evil of
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religious establishment contemplated at the time of the adoption, with
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the use of government power to foster or compel uniformity
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of religious thought and practice. The government was not permitted
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to promote any particular theological views. Well, thou shalt have
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no other gods before me, which is how the post
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to ten Commandments begin, is a theological view, and the
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basic idea of the establishment clause sometimes taken to be
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unfriendly to religion, But the establishment clause is a religion
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protective provision. It is predicated on the idea which was
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pervasive at the time of the framing, that religion is
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degraded and corrupted by state involvement with it, and that's
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going on here. Of what the statute requires is a
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specifically Protestant version of the ten Commandment, so part of
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the message of the Texas Statute is that we understand
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that the Catholics and the Jews have a different account
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of the meaning of the proper formulation of the Ten Commandments,
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but you Jews and Catholics are wrong. We're going to
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clear that up for you. You're welcome, And that's basically what
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the Texas is doing. There are multiple versions of the Decalogue,
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different religious views have now the way the Fifth Circuit
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responded to this, it's really pretty remarkable. They said, Well,
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in order to adjudicate that complaint, the court would have
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to decide whether the text wrongly omits Jewish understanders that
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God's Covenant or picks aside and the Catholic of Protestant debates,
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and that would require us to make a peological judgment
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fully unsuited to a federal court. That's what the court said.
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The problem with this reasoning is that it's never possible
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to enforce any non discrimination requirement if the adjudicator is
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blind to the very characteristic it's being protected the settled rule,
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which I don't think the Court challenged in Kennedy, the
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clearest command of the establishment clause is that one religious
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denomination can't be officially preferred over another. If the on
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bunk panel is right that command is unenforceable in federal court.
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That's something then the court goes on to say, and
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I think Stephanie had just said that the passive displays
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just can't be a hallmark of establishment. I take it
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that means that if you put posters in classrooms that
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say Jesus is Lord, or Islam is not really a religion,
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or Jews are going to Hell, that would not be
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an Establishment Clause violation. The state can say absolutely anything
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that it wants and that doesn't violate the Establishment Clause.
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It really is a remarkable reading of the Establishment Clause
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and inconsistent with the basic purposes of the clause. There
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are further things that we could talk about, having to
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do with the obligation of lower federal courts to follow
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the US Supreme Court's decisions and not to read decisions
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that are undermined by other decisions. The whole lemen and
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its progeny reasoning, I think misunderstands the role of the
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lower federal courts, which are supposed to follow Supreme Court
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decisions until they're overruled in anyway. The earlier ten Commandments
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decision from nineteen eighty didn't really rest on Lemen. It
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rested on the secular purpose requirement, which had been laid
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down by the Supreme Court in the nineteen sixties, well
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before Lemen. So this is really an extraordinary decision of
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the Enbank panel. It's not a originalist. It nullifies the
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establishment Clause. I hope very much that it will be overruled.
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But there are people who don't like the establishment clause
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and wish that there could be an official religion in
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the United States, and that's what we're really arguing about.
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Thank you for that professor compliment.
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I will maybe just jump in andet and pose a
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few questions to our panelists here. Maybe start just there's
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launch appoint with the professioral complement just said. You pointed
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out that the Supreme Court has said equitting recently that
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denominational discrimination is at the heart of the establishment clause prohibits.
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Do you think there's a difference though.
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Between a case asking where different whether different religious groups
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have been treated differently by the law, and a court
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being asked to determine if a display sends a mess
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like a religious message that's exclusively associated with one faith
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or another. I took it that the fitzircuit was saying
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that latter kind of case is the one that gets
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into theological judgments and not so much the former kind
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of case.
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But CUSI any thoughts about that.
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So I take it just following that logic, it means
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that if you have, if the legislature requires posters in
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the classroom that say the pope is the Antichrist, that
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doesn't present any establishment clause issue, no constitutional issue at all. Really,
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that seems to me remarkable.
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So no difference between those two guys of analyzes in
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terms of.
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Differential religious treat differential treatment of different sector denominations versus
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kind of understanding message that set by displays.
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Well, I don't know is a poster that says the
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post pulp it's the Antichrist treating different religions differently. I
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thought the answer was obvious, but I'm open to hear
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the counter argument.
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Great transition Professor burke Lady counter.
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Argument to that, Well, since you bring up the denominational issue, Andy,
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I do want to push back on this idea that
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you're saying that this is the Protestant version of the
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ten Commandment. So my understanding is that Christians and Jews
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have the exact same Tin of Commandments. This is a
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version of the Tin Commandments that has been upheld by
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the Supreme Court in.
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One of the Ten Commandment cases.
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So that it's not as though there's something about these
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Ten Commandments that screams Protestantism. It's just that Catholics and
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Orthodox have developed a separate set.
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So if government is doing something.
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Let's go back to how the hallmarks an established religion
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work that Kennedy lays out in the Supreme Court decision
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and the judged dun Can excellently describes.
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Here, you can have two different things happening.
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You can have, first of all, and a formal declaration
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by government that we have just established this new religion,
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and in that case we don't have to get into
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the functional hallmarks.
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If it is that, then that's clear.
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And so if government does something to say we're going
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to put up signs on every wall that the Catholic
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Church is our church, it doesn't matter that it's a
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passive display. The government has just now announced that there's
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an established church if it's statewide. So that's side of
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number one is there are still limits on what government
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can say to the extent that it is embracing just
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one denominational approach in a formal way. But aside from that,
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there's other hypotheticals that I guess I would ask you
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to answer. If we're going to now say that there's
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somehow this new hallmark of an established religion that involves
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any sort of passive display, does that mean that if
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a city erects ten commandments in a park, that's going
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to vihilate the establishment clause. What if there's a sign
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on the wall that says the Golden Rule or love
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your neighbor? Is that necessarily out of balance? There's a
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lot of stuff that we put on the walls. And
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then the other question that I guess I have for
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you is how do you think that cuts in a
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parallel way for the free exercise clause, where we then
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have a really ramped up version of the ability of
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religious objectors to do far beyond what mood allows and say,
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object to every pride flag on every wall in a classroom.
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I think that's the logical conclusion of your argument. Inside
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be interested in your thoughts about that. Well.
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I take it that the establishment clause forbids the government
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from making and announcing theological judgments. It doesn't barrow the
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government from making controversial judgments. Generally, the tobacco companies don't
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like anti smoking campaigns, but I don't believe anti smoking
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campaigns violate the establishment clause. So it really depends on
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the content of what said in the earlier Tent Amendment's decisions.
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I think it's now clear part of a line of
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decisions that says that the rules are different for displays
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that have been around for a long time. And I
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think that was anticipated and emphasized by Justice Bryer in
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the Ten Commandments, the earlier Ten Commandment's pair of decisions.
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If I think that the analysis is different if a
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state decides today to put up what the Court said
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it could keep if it had been around for a
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long time, So across that has been up for one
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hundred years, the state doesn't have to tear that down,
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and I'll lead Justice Alito pointed out accurately, I think
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that sends a message of hostility to religion to tear
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down across that's been up for one hundred years. That
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doesn't mean that a state can put up across in
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front of city Hall today. The analysis just different.
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So something that I want to push back on that
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is that you mentioned there's nothing in the Constitution prohibiting
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government from putting up offensive things. I agree that the
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point I'm making is more nuanced than that. If we
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say that it constitutes some sort of coersion, which is
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one of the arguments that was being made in this case,
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is that you have a passive display up in a
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classroom where somehow coursing religious exercise for the students in
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that classroom participate in that, then it seems like you
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must use that same standard of coercion if there are
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other things that someone has a religious objection to on
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the walls. And my current read of mahmood is that
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it does not extend to allowing students to object to
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anything that they don't like on the walls or any curriculum.
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But if we're applying a really amped up version of
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coercion and we're doing it in an even handed way,
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that would seem to expand mahmood quite a bit.
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Back to what you were.
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Saying earlier about the purpose of the establishment clause and
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what Michael and McConnell said about that. One thing that
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I'd like to push back on that legal philosophers have
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long noted, including scholars like John Fitnis or raz but
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not limited to them, that it's impossible for there to
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be one purpose of a law. That's just not how
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law works, that there are all multiple purposes. And I
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think here the history bears that out. There are jurisdictional
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reasons for the establishment clause that the churches and states
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just hapens to stay out of certain things. As you
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pointed out, there's concerns about denominational discrimination, which is somewhat
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different than inculcating. Necessarily, inculcating is another purpose. So do
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scholars like thinking about purposes and talk about them, like
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Michael McConnell, Absolutely is the purpose the law. No, the
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reason that we have law is because even if everybody
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agreed on purposes. Legal plosters have pointed out if we
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were a society of angels and everybody were like, yeah,
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that's a great purpose, we still disagree on how that
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cashes out, and so law has to draw a line somewhere.
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You're argument about inculcating others, If that's the law for
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the establishment clause could be read to invalidate all sorts
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of things, including the current religious exemptions that we provide
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under the free exercise clause, and that's an argument some
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scholars like micro Schwartzman and others have made that it
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provides an incentive for people to get religious exemptions, and
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so that violates the establishment clause. Frame Court has had
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no appetite for that, and I think it's an example
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of how going to that level and trying to make
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purpose in the law instead of the actual legal framework
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that we had at the founding that gives us very
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concrete guideposts for what biolos the establishment would lead to.
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Opening Pandora's box of these issues.
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Well, so, yeah, Stephanie, you've thrown a lot at me.
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I guess the larger issue of legal philosophy you've raised
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is whether it's appropriate to read a statute in light
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of its purpose. And I'll just say that when we
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do that all the time. The oldest hypothetical in law
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teaching is a statute that says no vehicles in the park.
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And if you're in the police officer at the park
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and you see a baby carriage coming into the park
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being pushed by a guy in a wheelchair, there actually
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is a pretty plausible argument that you should write zero
355
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tickets because they're not within the purpose of the statute.
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That happens a lot. I think that the concern about
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the evils of establishment are all through the entire body
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of establishment caused doctrine. And even if one looks at
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the hallmarks and construes them narrowly, I don't know if
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you can make sense of the hallmarks without some sense
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of why they were bad and why they were prohibited,
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and what makes some new state action analogous to the hallmarks.
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So I don't think that it's possible to entirely purge
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purpose from statutory interpretation and constitutional interpretation. One of the
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overwatching purposes of the establishment clause, as I said, is
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religion friendly concern that religion is corrupted and degraded if
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the state gets its hands on it, and that was
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one of that concerns that grow the framers, and I
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think that it's still valid. See you talked about mahmood.
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Parents have the right to opt to their children out
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of specific items of instruction. I think there's just a
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different concern if about the coercive pressure of having any
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form of official religion in the classroom. We going back
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to the school prayer cases, which happened before Lemon, and
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the court said that you could not, for example, read
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passages allowed from the King James Bible in the classroom.
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The law at the time was that the children did
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not need to participate and the children could opt out.
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That had been settled by West Virginia versus Barnett. And
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with respect to school prayer, you could say everything that
381
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Judge Duncan says about the Ten Commandments law. It doesn't
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tell churches or synagogues or musques what to believe. I
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punishes no one who rejects the Ten Commandments at Levy's
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no taxes to support any clergy. It doesn't co opt
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churches to for its cymble functions. After I read to
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the Fifth Circuit's opinion, it's not clear to me whether
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the Fifth Circuits approach would involve reversing the school prier
388
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even let nobody's compelled to participate in the prayers and
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let children are allowed to opt out. And that was
390
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the case in the nineteen sixties when those cases were decided.
391
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I don't want to interrupt the back and forth here.
392
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There's a lot of both cluness comments to jump off from.
393
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As the next step. I didn't want to ask there
394
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was it seems like there's some disagreement about whether this
395
00:21:22.119 --> 00:21:25.359
opinion gets the originalist right answer. And I wanted to
396
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ask after Kennedy and after it's returned to historical practices
397
00:21:29.000 --> 00:21:33.680
and understandings, are there other approaches to that analysis that
398
00:21:33.720 --> 00:21:36.559
have taken root in the post Kennedy cases or is
399
00:21:36.640 --> 00:21:39.519
this opinion within the mainstream of how the cases have
400
00:21:39.559 --> 00:21:42.440
been coming out? And maybe I'll ask Professor Borkeley first
401
00:21:42.440 --> 00:21:43.920
and then over the complement of fields.
402
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Response.
403
00:21:44.920 --> 00:21:45.759
Yeah, great question.
404
00:21:45.920 --> 00:21:49.759
So this is now the dominant approach in the lower courts,
405
00:21:49.880 --> 00:21:53.119
and the Third Circuit, Judge Hardiman, had an opinion that
406
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clearly adopted the six hallmarks of establish a religion as
407
00:21:56.559 --> 00:22:00.400
the relevant framework, and both en Bank and this petition
408
00:22:00.480 --> 00:22:02.680
were denied in that case, and the Fourth Circuit has
409
00:22:02.720 --> 00:22:04.960
a case adopting this framework as well. So there's no
410
00:22:05.039 --> 00:22:08.839
other real competing theory, which isn't surprising. This is the
411
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These are the hallmarks that Justice Courses described at length
412
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in his currence that was adopted by the Supreme Court
413
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in its majority opinion in Kennedy.
414
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And so this is just courts applying it.
415
00:22:18.759 --> 00:22:21.839
So we can have an interesting discussion andy about whether
416
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it should be something else. But it's not as though
417
00:22:23.480 --> 00:22:27.119
the Fifth Circuit is doing something unusual here. They're like
418
00:22:27.839 --> 00:22:30.359
just following the Supreme Court's guidance. And back to what
419
00:22:30.359 --> 00:22:35.480
you were saying about purpose for sech story interpretation. Respectfully,
420
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that's different than what I'm talking about. I'm not talking
421
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about how purpose might guide is there's more than one
422
00:22:40.160 --> 00:22:42.920
way to look at text. Purpose might help you interpret
423
00:22:42.960 --> 00:22:46.440
a statute WAYA instead of WAYB, which is a different debate.
424
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I'm talking about something some scholars seem to be arguing
425
00:22:50.200 --> 00:22:51.920
at it, and you at least regesting at this, which
426
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is Hey, instead of looking at the six very concrete
427
00:22:55.000 --> 00:22:57.720
hallmarks of an established religion that tell us pretty clearly
428
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what the web of laws were at the time that
429
00:23:00.960 --> 00:23:03.079
they would have recognized in the founding generation, is the
430
00:23:03.119 --> 00:23:05.160
types of things that made up an established religion.
431
00:23:05.160 --> 00:23:06.680
We could look at that, which is very concrete and
432
00:23:06.799 --> 00:23:07.880
very clear, where.
433
00:23:07.680 --> 00:23:09.480
We could say, huh, I wonder if I could find
434
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one purpose to rule them all that unifies all of
435
00:23:12.960 --> 00:23:15.119
those different hallmarks and just have that be the test.
436
00:23:15.319 --> 00:23:18.200
Something about inculcation. Let's run with that, which is basically
437
00:23:18.240 --> 00:23:20.799
exactly the problem with Lenin Lemon was trying to find
438
00:23:20.799 --> 00:23:24.519
one grand unified theory is very abstract, offers terrible guidance
439
00:23:24.559 --> 00:23:26.880
slower courts. That's why we had circuit splits all over
440
00:23:26.920 --> 00:23:29.279
the place. Under lemen, it would be like to quote
441
00:23:29.279 --> 00:23:31.839
a line from Justice Corsach in the American Legion, or
442
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like it would be like sending the dog back to
443
00:23:33.640 --> 00:23:36.000
its breakfast that it vomited if we went back to
444
00:23:36.039 --> 00:23:38.640
a test like that. Let's not because now we have
445
00:23:38.680 --> 00:23:41.960
a test that actually is rooted in the historical meaning
446
00:23:41.960 --> 00:23:44.839
at a lower level of generality. It's a more modest
447
00:23:44.839 --> 00:23:47.319
measure that's going to provide real guidance slower courts. As
448
00:23:47.359 --> 00:23:49.960
this decision has been three circuit courts have all done
449
00:23:49.960 --> 00:23:52.519
the same thing, rather than trying to pick one purpose,
450
00:23:52.519 --> 00:23:55.039
when again there are probably multiple purposes could be used
451
00:23:55.079 --> 00:23:58.279
to describe those different laws at different levels of generality.
452
00:23:58.319 --> 00:24:01.319
That opens a different pendoras that's the thing that I'm
453
00:24:01.359 --> 00:24:03.880
pushing back on. One other thing that I will point
454
00:24:03.920 --> 00:24:08.319
out is that to your question about church or school prayer,
455
00:24:09.200 --> 00:24:12.440
regardless of what the fifth Circuit is saying about coercion
456
00:24:12.839 --> 00:24:15.839
and passive displays, there's just no examples at the Founding
457
00:24:15.880 --> 00:24:19.480
that anyone has pointed to where a passive display was
458
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viewed as a violation of the establishment clause. So that's
459
00:24:22.319 --> 00:24:24.759
a default starting point that will just come into passive
460
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displays with the presumption against those being a violation of
461
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the establishment clause.
462
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But it's not true of prayer.
463
00:24:31.519 --> 00:24:33.599
Like there are a lot of examples that the Founding
464
00:24:33.599 --> 00:24:36.680
where people are being forced to participate in religious worship,
465
00:24:36.720 --> 00:24:40.559
including prayer. So coercing someone to actively participate in some
466
00:24:40.599 --> 00:24:43.680
sort of ceremony or religious exercise I think is a
467
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different category. The school prayer cases are also problematic, some
468
00:24:48.319 --> 00:24:51.119
of them under the establishment clause on an independent basis.
469
00:24:51.119 --> 00:24:55.319
So in angle versus by tell, the government dictated the
470
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language that would be used in the prayers, the government
471
00:24:57.480 --> 00:25:02.319
was essentially drafting liturgy. And another independent hallmark of established
472
00:25:02.319 --> 00:25:06.680
religion is having control over doctrine and liturgy by the government,
473
00:25:06.799 --> 00:25:09.640
And on that basis, that sort of school prayer limitation
474
00:25:09.839 --> 00:25:13.359
would still be upheld as problematic under the establishment clause.
475
00:25:13.400 --> 00:25:17.799
Today, definitely doesn't the rule that you just announced apply
476
00:25:18.400 --> 00:25:22.559
when the state legislature says this is the correct version
477
00:25:22.599 --> 00:25:24.799
of the Ten Commandments. If you've got a different version
478
00:25:24.839 --> 00:25:27.279
of the Ten Commandments. That one won't do the one
479
00:25:27.279 --> 00:25:30.160
for our classroom. We the legislature have decided what the
480
00:25:30.160 --> 00:25:32.799
correct version of the Ten Commandments is, which there are
481
00:25:32.799 --> 00:25:34.880
a number of problems, including the fact that if you
482
00:25:34.920 --> 00:25:37.119
look at the statute, I count eleven.
483
00:25:38.119 --> 00:25:42.000
So I don't think so, because again the Supreme Court
484
00:25:42.039 --> 00:25:45.119
has upheld very similar version of the Ten Commandments. But
485
00:25:45.200 --> 00:25:49.240
also in American legion, the Supreme Court pointed out ten
486
00:25:49.279 --> 00:25:52.640
Commandments are among the foundations of American law. So the
487
00:25:52.680 --> 00:25:55.119
Ten Commandments, yep, it's fine to pick a version that
488
00:25:55.319 --> 00:25:57.319
any of the versions of the Ten Commandments that they
489
00:25:57.359 --> 00:26:01.960
could have picked just have uniformity, not purely religious. They're
490
00:26:01.960 --> 00:26:04.799
also something that has been informative in our legal tradition.
491
00:26:05.119 --> 00:26:07.039
That's why they're hanging in the Supreme Court in the
492
00:26:07.039 --> 00:26:10.000
freeze above the court as a great lawgiver. So there's
493
00:26:10.039 --> 00:26:12.480
a different character to the Ten Commandments than when the
494
00:26:12.480 --> 00:26:16.160
state is saying we're drafting language for a prayer and
495
00:26:16.200 --> 00:26:19.240
there's nothing else about that other than religious liturgy. That's
496
00:26:19.240 --> 00:26:21.599
the type of thing that is covered by that hallmark.
497
00:26:22.319 --> 00:26:25.200
So your reasoning doesn't seem to apply to readings from
498
00:26:25.200 --> 00:26:27.519
the King James Bible, because there the state is not
499
00:26:27.599 --> 00:26:30.680
composing a text. The state is picking a religious text
500
00:26:30.799 --> 00:26:34.400
and saying that's what gets read from in the classrooms
501
00:26:34.400 --> 00:26:34.880
every day.
502
00:26:35.240 --> 00:26:37.240
I think readings are a different category. That's a different
503
00:26:37.240 --> 00:26:40.720
active category. It's more likely to be something that is
504
00:26:41.119 --> 00:26:44.480
active engagement in some sort of religious exercise than a
505
00:26:44.519 --> 00:26:45.279
passive display.
506
00:26:45.279 --> 00:26:46.119
I'm just saying passages.
507
00:26:46.160 --> 00:26:48.720
Students do get to opt out under Barnett. Even in
508
00:26:49.480 --> 00:26:52.799
the nineteen sixties, nobody was compelled to pray. Everyone had
509
00:26:52.880 --> 00:26:55.880
rights under Barnett to opt out. That had been settled
510
00:26:55.880 --> 00:26:57.240
since nineteen forty three.
511
00:26:57.359 --> 00:26:58.839
Which is one reason that I'm pointing out that I
512
00:26:58.839 --> 00:27:01.359
think angle versus the telling is unconstitutional for the doc
513
00:27:01.400 --> 00:27:04.880
trial reason because it is debatable I think whether or
514
00:27:04.920 --> 00:27:07.359
not there was coercion. If you have a real opt
515
00:27:07.359 --> 00:27:09.720
out right, there may be other problems, including problems of
516
00:27:10.200 --> 00:27:13.440
requiring a teacher a state actor to participate in religious
517
00:27:13.440 --> 00:27:15.920
exercise and to be like a religious leader for that.
518
00:27:16.079 --> 00:27:19.359
But once we're moving into readings or prayer, that's a
519
00:27:19.359 --> 00:27:22.440
different category entirely, and something that hangs on the wall
520
00:27:22.480 --> 00:27:23.599
and no one reads.
521
00:27:24.119 --> 00:27:26.920
Okay, it's not clear to me under your analysis, whether
522
00:27:26.960 --> 00:27:31.359
Appington versus Shemp would struck down Bible readings would remain
523
00:27:32.119 --> 00:27:35.519
after Kennedy. But part of the problem is that the
524
00:27:35.519 --> 00:27:39.000
hallmarks well a couple of issues with Kennedy. Kennedy is
525
00:27:39.160 --> 00:27:42.480
not really clear on whether the whole mark list is
526
00:27:42.640 --> 00:27:46.559
exhaustive of the meaning of the establishment cause, and lower
527
00:27:46.559 --> 00:27:49.200
courts have in fact split on that. And there's a
528
00:27:49.279 --> 00:27:53.960
further question about at what level of generality one describes
529
00:27:54.079 --> 00:27:57.400
the hallmarks. Some one can describe them at fairly abstractly,
530
00:27:57.839 --> 00:28:01.200
one can describe them fairly narrowly. I think one of
531
00:28:01.279 --> 00:28:05.200
the things that Judge Duncan did in his opinion was
532
00:28:05.279 --> 00:28:09.440
to construe them really narrowly. So that and again without
533
00:28:09.599 --> 00:28:14.759
much attention to the purposes of having the clause in
534
00:28:14.799 --> 00:28:18.720
the first place, which if you've got a constitutional provision
535
00:28:18.759 --> 00:28:22.200
that aims a specific evil and aims that evil not
536
00:28:22.359 --> 00:28:27.839
be repeated, there's a reason why establishment is prohibited. If
537
00:28:27.880 --> 00:28:32.400
you limit that evil to its specific historical instances, I
538
00:28:32.400 --> 00:28:36.599
think you frustrate the overall purpose of the prohibition. The
539
00:28:36.599 --> 00:28:40.720
classic example of this is Plus versus Ferguson, which construed
540
00:28:40.759 --> 00:28:43.720
the lungs of the Black Codes after the Civil War
541
00:28:44.000 --> 00:28:47.240
as narrowly as possible and said, look, whites aren't allowed
542
00:28:47.279 --> 00:28:49.119
in the black car, Blacks are aren't allowed in the
543
00:28:49.119 --> 00:28:53.039
white car. No discrimination. It's not exactly the same as
544
00:28:53.079 --> 00:28:56.799
what was done after the Civil War, and so it's perissible.
545
00:28:57.440 --> 00:29:00.920
I think that this part of the cost of ignoring purposivism.
546
00:29:01.200 --> 00:29:04.039
But it all depends on the level of generality and
547
00:29:04.119 --> 00:29:08.559
which you described the original historical wrong that was prohibited.
548
00:29:09.960 --> 00:29:12.400
Well, let's I have a response to that. But Joe
549
00:29:12.400 --> 00:29:13.880
were kidding you out as a moderator, would you like
550
00:29:13.920 --> 00:29:17.160
to jump in before I I'm with the spectator.
551
00:29:17.680 --> 00:29:18.079
Go ahead.
552
00:29:19.000 --> 00:29:22.680
I think it's important to also remember another background thing
553
00:29:22.720 --> 00:29:26.480
that's operating here, which is, first of all, not clear
554
00:29:26.640 --> 00:29:29.559
that the Establishment Clause should be operating at all against
555
00:29:29.599 --> 00:29:30.680
state and local governments.
556
00:29:30.839 --> 00:29:32.319
So Justices Thomas.
557
00:29:32.039 --> 00:29:34.400
And Gorsich have both written about the fact that the
558
00:29:34.519 --> 00:29:35.720
Establishment Clause was really.
559
00:29:35.839 --> 00:29:36.839
We're talking about purpose.
560
00:29:36.920 --> 00:29:39.319
The purpose of the Establishment Clause was to limit the
561
00:29:39.359 --> 00:29:41.880
federal government, not stating in local governments, which at the
562
00:29:41.920 --> 00:29:45.119
time of the First Amendment had their own establishments. So
563
00:29:45.119 --> 00:29:47.400
some scholars debate about whether it can be brought in
564
00:29:47.480 --> 00:29:51.599
under the fourteenth Amendment at all, given that ambiguity, where
565
00:29:51.720 --> 00:29:54.559
there's a much weaker argument for incorporating the establishment clause
566
00:29:54.599 --> 00:29:56.799
than say, the free exercise clause, I think that's a
567
00:29:56.839 --> 00:29:59.319
reason for there to be modesty in the type of
568
00:29:59.359 --> 00:30:03.519
judicial doctrine that we create, and to create fewer conflicts
569
00:30:03.559 --> 00:30:06.839
between the judiciary and democratically enacted work product. I think
570
00:30:06.839 --> 00:30:10.880
that's especially true where this is a categorical ban on
571
00:30:10.960 --> 00:30:11.599
government action.
572
00:30:11.720 --> 00:30:12.240
What does that mean?
573
00:30:12.279 --> 00:30:15.839
I think it means interpreting the hallmarks as Judge Duncan
574
00:30:15.920 --> 00:30:19.000
excellently did at a lower level of generality. So that
575
00:30:19.000 --> 00:30:21.359
will have the virtue of being a more modest doctrine,
576
00:30:21.400 --> 00:30:24.720
that's having less judicial intervention in the democratic process and
577
00:30:24.759 --> 00:30:28.680
providing more predictability to lower courts about how to apply this.
578
00:30:28.799 --> 00:30:32.480
I will also say that Justices Scalia and some others
579
00:30:33.039 --> 00:30:36.359
seem to be taking a narrower, more limited view of coercion. Anyway,
580
00:30:36.559 --> 00:30:39.160
at the Supreme Court, it was Justice Kennedy's pet project
581
00:30:39.160 --> 00:30:41.160
to broaden coercion, and I don't see the votes for
582
00:30:41.160 --> 00:30:44.359
that at the Supreme Court either. Having a goosey approach
583
00:30:44.400 --> 00:30:47.359
to coercion that a high level of generality could again
584
00:30:47.440 --> 00:30:49.440
prohibit just about anything. In fact, at the level of
585
00:30:49.480 --> 00:30:52.759
generality you're talking about or we're thinking about purpose, the
586
00:30:52.799 --> 00:30:57.039
pledge of allegiance in class is a problem. Some religious
587
00:30:57.079 --> 00:31:00.319
groups view that as a type of idolatry, to have
588
00:31:00.359 --> 00:31:02.359
the pledge of legions, So should we take that out
589
00:31:02.680 --> 00:31:04.519
in God we trust on coins like all of that
590
00:31:04.559 --> 00:31:07.920
could be viewed as coercive or inculcating at some level.
591
00:31:07.920 --> 00:31:10.000
I don't see any end to this slippery slope of
592
00:31:10.039 --> 00:31:12.759
those hypotheticals on your end either, if that's the way
593
00:31:12.799 --> 00:31:14.519
that we're going to couch the establishment clause.
594
00:31:15.599 --> 00:31:18.720
The idea that official religion in the classroom has a
595
00:31:18.759 --> 00:31:23.039
coercive effect on children is not something that was invented
596
00:31:23.079 --> 00:31:26.319
by Lemon. That is the school prayer cases. That's why
597
00:31:26.680 --> 00:31:29.640
it's not enough to tell children that they get to
598
00:31:29.680 --> 00:31:33.240
sit silently while other children pray, because that has a
599
00:31:33.279 --> 00:31:37.119
coercive effect on the children, and children are more susceptible
600
00:31:37.119 --> 00:31:40.880
to this kind of pressure. Just going back to the
601
00:31:40.960 --> 00:31:45.359
incorporation question, there's substantial scholarship by Kurt Lash indicating that
602
00:31:45.440 --> 00:31:47.759
non establishment at the time of the framing of the
603
00:31:47.759 --> 00:31:52.119
fourteenth Amendment was understood at the time as an individual right.
604
00:31:52.200 --> 00:31:55.400
You had a right not to be subjected to an
605
00:31:55.559 --> 00:31:59.640
established church. So the Original as evidence here is really
606
00:31:59.799 --> 00:32:03.240
a power. Well, it's not as clear as you're suggesting.
607
00:32:03.920 --> 00:32:07.039
And anyway, the idea that we're just going to get
608
00:32:07.119 --> 00:32:10.359
rid of the establishment clause as applied to the States
609
00:32:10.720 --> 00:32:14.960
isn't anything that Justice course that suggested in his opinion
610
00:32:15.319 --> 00:32:19.079
in Kennedy. I mean, it is true that non intervention
611
00:32:19.440 --> 00:32:21.599
and telling the States they can do what they like
612
00:32:21.759 --> 00:32:24.440
does promote stability. But you could have said those things
613
00:32:24.440 --> 00:32:25.799
on behalf of plessy as well.
614
00:32:26.960 --> 00:32:28.799
I can jump in here with a question that's trust.
615
00:32:29.079 --> 00:32:32.279
So again i'll bring us back to a different point
616
00:32:32.319 --> 00:32:34.839
than Priessor Coplan was raising earlier, which we've had a
617
00:32:34.839 --> 00:32:37.720
great discussion about Original methodology here, but he made a
618
00:32:37.720 --> 00:32:40.200
point about its methodology in terms of approaches to precedent,
619
00:32:40.240 --> 00:32:42.960
and Professor Copplin, you were saying the lawyer courts should
620
00:32:43.119 --> 00:32:44.920
be bound by Supreme Court President. So it's a rule
621
00:32:44.960 --> 00:32:46.319
of the Supreme Court, of course, which I think is
622
00:32:46.680 --> 00:32:48.839
a personal everybody agrees on. But how do you see
623
00:32:48.839 --> 00:32:51.400
that playing out with the Limon era precedents? Right, they're
624
00:32:51.400 --> 00:32:54.240
Stone versus Graham, But that's that's only one application of limit.
625
00:32:54.279 --> 00:32:55.440
There are a number of different ones.
626
00:32:55.599 --> 00:32:58.119
How do you think the lower courts should approach in
627
00:32:58.119 --> 00:33:00.160
the cases from those decades where the Supreme Court was
628
00:33:00.160 --> 00:33:01.640
apply the Lemon Test?
629
00:33:02.440 --> 00:33:05.880
Well, I thought that the rule was settled that lower
630
00:33:05.920 --> 00:33:09.519
courts are not to look at Supreme Court decisions that
631
00:33:09.640 --> 00:33:13.319
may have been undermined by other decisions and say, all right,
632
00:33:13.400 --> 00:33:16.079
so I'm counting the votes aren't there for this, So
633
00:33:16.119 --> 00:33:19.319
I'm going to overrule that. The Court made absolutely clear
634
00:33:19.400 --> 00:33:22.440
that is not the role of the lower federal courts.
635
00:33:22.839 --> 00:33:27.240
So Judge Duncan did something fairly remarkable here by saying, well,
636
00:33:27.519 --> 00:33:30.240
you know, any of the progeny of not just the
637
00:33:30.279 --> 00:33:34.160
progeny of the decision of Lemon, but even decisions before
638
00:33:34.279 --> 00:33:37.880
Lemon that were incorporated by reference into the Lemon test
639
00:33:38.319 --> 00:33:42.880
are overruled. That So even Abington versus Shemp and Dongle
640
00:33:42.960 --> 00:33:46.279
versas fatalite, the secular purpose cases that were the basis
641
00:33:46.599 --> 00:33:49.839
of Stone versus Graham, then teen eighty ten Commandment's case,
642
00:33:50.160 --> 00:33:52.920
those are over ruled too. If you're going to say
643
00:33:52.960 --> 00:33:57.319
that the Court implicitly threw out any precedent that Lemon
644
00:33:57.640 --> 00:34:01.279
relied on, since Lemon exercised the power of judicial review.
645
00:34:01.480 --> 00:34:04.000
I think you'd have to say that Kennedy versus Bremmerton
646
00:34:04.079 --> 00:34:07.880
implicitly over ruled Marbie versus Medicine. But I don't think
647
00:34:07.920 --> 00:34:10.679
that's the right way to read Kennedy.
648
00:34:10.840 --> 00:34:14.480
So I don't think that what's going on is that
649
00:34:14.519 --> 00:34:17.760
their judge Duncan was trying to read how the court's
650
00:34:17.840 --> 00:34:18.599
votes might go in.
651
00:34:18.519 --> 00:34:19.519
Stone versus Graham.
652
00:34:19.559 --> 00:34:23.000
What he points out in that decision is that in
653
00:34:23.039 --> 00:34:25.920
Stone versus Graham, they were applying.
654
00:34:25.480 --> 00:34:26.199
The Lemon tests.
655
00:34:26.320 --> 00:34:29.480
So the Lemon was the heart of what was going
656
00:34:29.519 --> 00:34:31.199
on in that case they were looking at. They spent
657
00:34:31.320 --> 00:34:36.280
pages on going through whether or not this was satisfying
658
00:34:36.320 --> 00:34:38.719
the purpose test of women, for example. And so once
659
00:34:38.840 --> 00:34:42.880
Lemon is extracted, there just is nothing left of Stone
660
00:34:43.199 --> 00:34:48.360
that's different than if there's some new application of precedent
661
00:34:48.400 --> 00:34:51.360
and it's in a different context. And those are reasons,
662
00:34:51.360 --> 00:34:54.760
for example, that some aspects of some establishment clause cases
663
00:34:54.800 --> 00:34:57.679
that relate to Lemon but are doing other things might
664
00:34:57.719 --> 00:35:00.239
be good live on for other reasons. For example, you
665
00:35:00.239 --> 00:35:03.960
can imagine Santa Fe School District, which is a case
666
00:35:03.960 --> 00:35:06.639
which does apply women in some aspects of its reasoning,
667
00:35:07.000 --> 00:35:10.480
but also involves real coercion where some students are required
668
00:35:10.519 --> 00:35:12.800
because they're members of the band and their grade depends
669
00:35:13.280 --> 00:35:16.159
on them going to this event in order to be
670
00:35:16.239 --> 00:35:20.639
able to graduate. That precedent is fine for that class
671
00:35:20.639 --> 00:35:23.679
of students for sure, in terms of under the current
672
00:35:23.880 --> 00:35:25.920
the Court's current Establishment Clause doctrine.
673
00:35:25.960 --> 00:35:26.880
The other thing that I think is.
674
00:35:26.880 --> 00:35:28.840
Worth pointing out, and this goes back to something you
675
00:35:28.840 --> 00:35:32.280
were saying about precedent, Andy, is because the school prayer
676
00:35:32.360 --> 00:35:35.800
cases didn't predate Leomen, those are still a good law
677
00:35:36.000 --> 00:35:38.920
for lower courts, and that's precedent that binds the Fifth Circuit.
678
00:35:38.960 --> 00:35:41.320
That's another reason why if something like a Bible reading
679
00:35:41.559 --> 00:35:44.840
or school prayer case came up, that wouldn't be something
680
00:35:44.840 --> 00:35:46.800
that the Fifth Circuit would be like. That would be
681
00:35:46.840 --> 00:35:48.679
an example of them getting ahead of the Supreme Court
682
00:35:48.719 --> 00:35:51.280
and thinking, well, what do I think these six hallmarks
683
00:35:51.360 --> 00:35:54.360
might do for cases like that that the Supreme Court
684
00:35:54.360 --> 00:35:57.239
hasn't clearly invalidated it. That's not what's going on in Stone,
685
00:35:57.320 --> 00:36:00.360
where it's just applying the Lemon test. We don't have
686
00:36:00.400 --> 00:36:03.800
to speculate about how the Court might apply the hallmarks
687
00:36:03.840 --> 00:36:06.559
to another set of facts in a case, it isn't
688
00:36:06.639 --> 00:36:09.360
Lemon's progeny dealing with a different type of analysis.
689
00:36:09.400 --> 00:36:11.920
And that's what you're suggesting. That's not what Judge Duncan did.
690
00:36:13.119 --> 00:36:16.079
What happened in Stone was that the court relied on
691
00:36:16.199 --> 00:36:19.639
the secular purpose requirement, and it said that the law
692
00:36:19.719 --> 00:36:22.599
requiring the posting of the Ten Commandments in every classroom
693
00:36:23.039 --> 00:36:27.599
doesn't have a secular purpose. And that secular purpose requirement,
694
00:36:27.639 --> 00:36:30.920
which was announced in Shemp and Angle, was incorporated by
695
00:36:31.079 --> 00:36:35.960
reference in Lemon. But on the Fifth Circuit Judge Southwick
696
00:36:36.119 --> 00:36:39.119
rooted descent, and he said, and I think this is right.
697
00:36:39.199 --> 00:36:41.880
The court citation to Lemon was grote. The reasoning for
698
00:36:42.000 --> 00:36:46.079
why the Kentucky law violated the Establishment Clause rested entirely
699
00:36:46.199 --> 00:36:49.960
on Shemp and Angle, and the way to understand Lemon.
700
00:36:50.199 --> 00:36:53.679
I like Southwick's formulation here. It's best understood as the
701
00:36:53.719 --> 00:36:56.840
glue that bound together several different principles in a failed
702
00:36:56.880 --> 00:37:00.960
experiment to form one test for the establishment clause cases.
703
00:37:01.119 --> 00:37:03.239
And can we put an end to that? But it
704
00:37:03.320 --> 00:37:07.079
never discarded the principles that lemen bound together. And the
705
00:37:07.119 --> 00:37:10.559
secular purpose test was the law before Lemon. It survives it,
706
00:37:11.119 --> 00:37:14.920
and Judge Duncan didn't attempt to explain what the secular
707
00:37:14.960 --> 00:37:19.760
purpose requirement, what the secular purpose was of the Texas Statute,
708
00:37:20.199 --> 00:37:23.320
and he just treated the secular purpose requirement as if
709
00:37:23.320 --> 00:37:24.559
it were no longer good law.
710
00:37:26.239 --> 00:37:29.239
So I just emphatically reject the idea that the secular
711
00:37:29.239 --> 00:37:32.960
purpose test is still good law. That is definitely one
712
00:37:33.000 --> 00:37:35.480
of Lemen's three prongs. The fact that it came before
713
00:37:35.559 --> 00:37:39.079
Lemen is irrelevant once it became the test of Leomen.
714
00:37:39.480 --> 00:37:41.280
Once it is one of the three prongs of women,
715
00:37:41.400 --> 00:37:44.320
and the Supreme Court says those three prongs are not
716
00:37:44.400 --> 00:37:47.320
the ones we look at anymore for the establishment clause.
717
00:37:47.639 --> 00:37:49.920
That is not good law. Doesn't matter where it came
718
00:37:49.920 --> 00:37:53.000
from before Lemen. It was overruled in Lemen. And so
719
00:37:53.320 --> 00:37:55.920
to the extent that we're looking at anything related to purpose,
720
00:37:55.960 --> 00:37:58.039
it would only be if it's relevant under one of
721
00:37:58.039 --> 00:38:01.559
the irrelevant six homers Sablished religion, the Court has now
722
00:38:01.559 --> 00:38:04.679
said is the law and is the framework, And so
723
00:38:04.760 --> 00:38:06.920
you'd have to look at in particular context, based on
724
00:38:07.039 --> 00:38:10.719
low level of generality the facts in that hallmark area.
725
00:38:11.119 --> 00:38:14.440
Was something about purpose relevant for that particular historical question.
726
00:38:14.480 --> 00:38:16.559
That's a very different question than just at a high
727
00:38:16.599 --> 00:38:22.079
level of abstraction, secular purpose writ large. Also in the
728
00:38:22.119 --> 00:38:24.760
Stone versus Gram case, the Court concluded that the state's
729
00:38:24.840 --> 00:38:27.599
secular purpose there was in fact as sham, and they
730
00:38:27.639 --> 00:38:31.480
said Kentucky's preeminent purpose was plainly religious in nature. So
731
00:38:31.519 --> 00:38:34.280
they're not just citing Lemon in passing. They're engaging in
732
00:38:34.360 --> 00:38:38.000
analysis about the secular purpose. And so once you extract Lemon,
733
00:38:38.400 --> 00:38:40.760
that all fars palls apart. There's nothing left of Stone
734
00:38:40.840 --> 00:38:43.000
versus Graham, and Judge Duncan was right to hold that.
735
00:38:43.880 --> 00:38:46.599
So you take up that the reasoning and the rules
736
00:38:46.679 --> 00:38:49.760
laid down in Shemp and Angle are now no longer
737
00:38:49.840 --> 00:38:52.880
good law, because if there hadn't ever been a Lemon decision,
738
00:38:52.920 --> 00:38:56.960
those would still be binding. But the secular purpose test
739
00:38:57.079 --> 00:39:00.000
laid down in those it's just contaminated by an incorporate
740
00:39:00.440 --> 00:39:03.159
into Lemons. Not the law anymore at all.
741
00:39:04.000 --> 00:39:07.239
Yeah, the secular purpose contest isn't the law anymore. Those
742
00:39:07.400 --> 00:39:10.480
holdings very well may survive. This is not uncommon that
743
00:39:11.360 --> 00:39:14.480
when the Supreme Court overrules Chevron in Low for Bride,
744
00:39:14.639 --> 00:39:18.639
it may clear some holdings of cases will survive in
745
00:39:18.719 --> 00:39:21.000
terms of the facts of that case that that doesn't
746
00:39:21.039 --> 00:39:24.320
mean that their reasoning survives. The reasoning gone, and the
747
00:39:24.360 --> 00:39:26.079
court knew how to do that. They did that on
748
00:39:26.119 --> 00:39:27.880
Low for Brighte, they didn't do it here. So that's
749
00:39:27.880 --> 00:39:30.559
another reason why a case like Stone versus Gram that
750
00:39:30.639 --> 00:39:33.639
is only relying on Lemon shouldn't survive where there's not
751
00:39:33.679 --> 00:39:36.440
some separate basis or some separate facts about the And
752
00:39:36.480 --> 00:39:39.000
again the Supreme Court has upheld it's not as though
753
00:39:39.039 --> 00:39:43.519
Stone versus Graham laid down a rule no ten commandments ever,
754
00:39:44.199 --> 00:39:46.079
or that's what the Supreme Court did, and the Van Ordon,
755
00:39:46.159 --> 00:39:48.840
Perry or mcquery tint commandment cases.
756
00:39:49.039 --> 00:39:50.280
It's very facts specific.
757
00:39:50.519 --> 00:39:52.400
So if we had some sort of bright line rule
758
00:39:52.440 --> 00:39:54.639
like that was different from Lemon, maybe that would survive.
759
00:39:54.679 --> 00:39:55.320
That's not what they did.
760
00:39:55.599 --> 00:39:58.000
So sometimes ten commandments will survive depending on how the
761
00:39:58.039 --> 00:39:59.000
secular purpose goes.
762
00:39:59.119 --> 00:40:00.039
Sometimes they won't.
763
00:40:00.360 --> 00:40:03.440
That requires relying on the Lemon framework, and the Lemon
764
00:40:03.480 --> 00:40:06.400
framework is gone. And so now what we apply are
765
00:40:06.400 --> 00:40:09.199
the six Hallmarks, not lemen. That's what Kennedy took away
766
00:40:09.440 --> 00:40:12.360
and Stone versus Graham disintegrates with it as a result,
767
00:40:13.599 --> 00:40:14.039
What is.
768
00:40:14.000 --> 00:40:17.000
The relationship this is? This seems to me to be
769
00:40:17.039 --> 00:40:20.440
a pretty bold reading of Kennedy, which don't think goes
770
00:40:20.559 --> 00:40:22.840
that far. And I have people who are watching with
771
00:40:22.960 --> 00:40:26.480
the you google Ira Lupu. He's got offered the most
772
00:40:26.480 --> 00:40:33.440
detailed analysis of what survives Kennedy. But the other specific
773
00:40:33.719 --> 00:40:38.159
holding of both Shemp and Angle is that school children
774
00:40:38.400 --> 00:40:42.519
are subject to peculiar degrees of coercive pressure in the
775
00:40:42.519 --> 00:40:46.320
classroom such that even for them to passively sit there
776
00:40:46.360 --> 00:40:50.760
while religion is promoted is creates pressures on them that
777
00:40:51.000 --> 00:40:54.480
create an establishment clause problem. Now all of that was all,
778
00:40:54.840 --> 00:40:58.960
and the opinions there pre date Lemon. Is the concern
779
00:40:59.079 --> 00:41:04.920
about coercive pressure on children in the classroom also incorporated
780
00:41:04.960 --> 00:41:07.480
by reference into Lemon and therefore no longer good law.
781
00:41:08.920 --> 00:41:11.199
No coercion isn't one of the three prongs of Lemen
782
00:41:11.360 --> 00:41:15.760
in the court in the hallmark in the six Hallmarks
783
00:41:15.760 --> 00:41:20.320
specifically mentions coerse religious exercise. So you're making up some
784
00:41:20.360 --> 00:41:24.159
weird Lemon contamination thing. I'm just saying the test for Lemon,
785
00:41:24.760 --> 00:41:27.000
the test from Lemon, wherever it came from, is now
786
00:41:27.119 --> 00:41:27.880
no longer the law.
787
00:41:28.239 --> 00:41:29.519
So it doesn't matter where it came from.
788
00:41:29.559 --> 00:41:31.159
It was the test of Leomen to say a secular
789
00:41:31.199 --> 00:41:35.039
purpose coerse religious exercise is now the law that.
790
00:41:35.000 --> 00:41:37.119
The Court gave us in Kennedy. It's one of the hallmarks.
791
00:41:37.400 --> 00:41:41.320
And so yes, some previous cases also correctly talked about coercion.
792
00:41:41.400 --> 00:41:43.400
Good for them, the Supreme Court made clear and justice
793
00:41:43.480 --> 00:41:46.039
of course it s talked about those cases that independently
794
00:41:46.079 --> 00:41:48.719
got at the right answer under our current framework would
795
00:41:48.760 --> 00:41:52.480
remain good law even if they weren't applying this exact
796
00:41:52.639 --> 00:41:55.320
set of six historical hallmarks. If they stumbled into it
797
00:41:55.559 --> 00:41:58.079
and they are consistent with the six historical hallmarks, then
798
00:41:58.079 --> 00:42:00.519
we'll keep them. Stone versus Graham is neither applying the
799
00:42:00.559 --> 00:42:03.159
right test, nor did it get the right result under
800
00:42:03.159 --> 00:42:04.719
those six hallmarks.
801
00:42:05.559 --> 00:42:07.760
Oh oh, if that contaminated limit.
802
00:42:07.760 --> 00:42:10.159
If we've had vehicles from as far lord of a
803
00:42:10.159 --> 00:42:12.360
lot of good stuff in the mix, here we u surprising.
804
00:42:12.400 --> 00:42:14.920
We're getting a bunch of great questions from our listeners
805
00:42:14.920 --> 00:42:16.800
of yours. So I wondered if I could jump into
806
00:42:16.800 --> 00:42:19.960
those and post to the group here's what. I may
807
00:42:20.039 --> 00:42:22.239
edit a little bit as I go, But so would
808
00:42:22.239 --> 00:42:23.760
it changed anything about this case?
809
00:42:23.920 --> 00:42:27.039
If the law just allows or encourage.
810
00:42:26.880 --> 00:42:30.119
Encourages posting the take commandments such that it would also
811
00:42:30.199 --> 00:42:33.920
allow the posting of other moral teachings or other religious imagery.
812
00:42:34.199 --> 00:42:36.639
Professor comp Medacy responding as I ask, so do you
813
00:42:36.719 --> 00:42:37.440
have any thoughts on that?
814
00:42:38.199 --> 00:42:40.719
Well, I guess saw. I'd want to test it with
815
00:42:40.960 --> 00:42:46.239
more religiously controversial claims. If they say we classrooms are
816
00:42:46.400 --> 00:42:50.079
simply permitted to put a post in the classroom that
817
00:42:50.119 --> 00:42:52.199
says God does not hear the prayer of a Jew,
818
00:42:53.239 --> 00:42:57.280
would that be perissible or would that create a constitutional difficulty?
819
00:42:57.440 --> 00:43:00.000
I take it the major of the on bunk panels
820
00:43:00.079 --> 00:43:02.000
for you is it's a passive display. You can do
821
00:43:02.199 --> 00:43:07.639
anything in passive display. No establishment clause problem?
822
00:43:07.920 --> 00:43:09.679
Does mark whenny response to that go some of the
823
00:43:09.760 --> 00:43:10.320
questions not?
824
00:43:10.440 --> 00:43:12.760
But yeah, I don't take the panel to be saying
825
00:43:12.800 --> 00:43:15.199
you can do anything if it's a passive display. So
826
00:43:15.280 --> 00:43:19.639
what Kennedy says is, aside from formal declarations of an establishment,
827
00:43:19.800 --> 00:43:21.400
these are the hallmarks that we're going to look at.
828
00:43:21.480 --> 00:43:23.960
So it's quite possible a passive display, if it's done
829
00:43:24.519 --> 00:43:27.360
for an entire jurisdiction of the government's mandating, it could
830
00:43:27.559 --> 00:43:30.280
rise the level of formal declarations. There are limits but
831
00:43:30.320 --> 00:43:33.360
the presumption is going to be that passive displays aren't
832
00:43:33.360 --> 00:43:35.480
one of the hallmarks, and so most of them won't
833
00:43:35.480 --> 00:43:37.440
be a display. And again, Andy, you still have answered
834
00:43:37.480 --> 00:43:40.119
the question of is saying the pledge of allegiance violating
835
00:43:40.119 --> 00:43:42.840
your version of the establishment clause? Some religious groups subject
836
00:43:42.880 --> 00:43:44.639
to that and think that's a form of idolatry. Why
837
00:43:44.679 --> 00:43:46.920
isn't that the type of inculcation that you're concerned about.
838
00:43:47.119 --> 00:43:49.239
I think it would have been fine if the state
839
00:43:49.239 --> 00:43:51.480
would have said we encourage the Ten Commandments, we don't
840
00:43:51.519 --> 00:43:54.360
require them. I think it wasn't constitutionally required, so it's
841
00:43:54.400 --> 00:43:55.639
constitutionally irrelevant.
842
00:43:55.800 --> 00:43:59.440
Well, but I just answered Stephanie's question of the view
843
00:43:59.440 --> 00:44:01.840
of America legion, and I think the view of quite
844
00:44:01.840 --> 00:44:03.840
a lot of establishment the clause law is if a
845
00:44:03.880 --> 00:44:06.599
practice has been around for a long time, the court
846
00:44:06.800 --> 00:44:10.199
leaves it alone and grandfathers it. And I think that's
847
00:44:10.280 --> 00:44:13.679
the best explanation of what was going on in Late
848
00:44:13.840 --> 00:44:16.280
and Commandments case that we're justicing on the Supreme Court.
849
00:44:16.320 --> 00:44:18.360
Who said so?
850
00:44:18.360 --> 00:44:20.039
So if you said, I like this next question because
851
00:44:20.039 --> 00:44:22.239
it gets us to some common ground between our analyst series.
852
00:44:22.519 --> 00:44:25.400
The question is quite apart from history after Kennedy, is
853
00:44:25.440 --> 00:44:26.800
not religious coercion.
854
00:44:26.480 --> 00:44:28.079
A violation of the establishment clause.
855
00:44:28.159 --> 00:44:30.280
I think both of you would say, yes, coersion is
856
00:44:30.320 --> 00:44:35.199
a violation of religious coversions of violation of the establishing clause.
857
00:44:34.280 --> 00:44:38.000
Traverse seal, Yeah the devil and be in the details
858
00:44:38.039 --> 00:44:41.679
of how we define coercion. So I don't think coercion
859
00:44:42.199 --> 00:44:45.960
equates to peer pressure, or at least that's much more
860
00:44:46.000 --> 00:44:48.480
of an uphill battle to say that any sort of
861
00:44:48.760 --> 00:44:53.840
anything that makes someone feel any sort of discomfort.
862
00:44:52.480 --> 00:44:53.440
Might count his coercion.
863
00:44:53.480 --> 00:44:57.679
And as Judge Olten pointed out in his concurrence, there
864
00:44:57.760 --> 00:45:01.480
are real standing questions about those sorts of cases anyway,
865
00:45:01.480 --> 00:45:03.360
including in this one. So it seems to be getting
866
00:45:03.360 --> 00:45:06.039
awfully close to just offendite observer standing. But if there's
867
00:45:06.039 --> 00:45:10.199
a penalty involved, or your class attendance is involved, or
868
00:45:10.400 --> 00:45:13.199
even in the Kennedy versus Bremerton School District, the case
869
00:45:13.199 --> 00:45:15.800
where the coach wanted to pray on the fifty yard line,
870
00:45:16.079 --> 00:45:20.159
the court went to pains to point out that the
871
00:45:20.239 --> 00:45:23.199
students who previously felt like if they didn't pray with
872
00:45:23.239 --> 00:45:26.400
the coach they wouldn't play. That hadn't been resolved because
873
00:45:26.440 --> 00:45:29.000
the coach agreed to stop playing with his team, which
874
00:45:29.039 --> 00:45:31.760
suggested that if students were feeling like I won't get
875
00:45:31.800 --> 00:45:34.440
to play in the game if I don't participate in
876
00:45:34.480 --> 00:45:37.039
this religious exercise, that very well could be the type
877
00:45:37.039 --> 00:45:39.400
of coercion that the establishment clause has something to say
878
00:45:39.440 --> 00:45:41.800
that I think it would be, but there has to
879
00:45:41.840 --> 00:45:45.400
be that's very different, real concrete consequence the government is
880
00:45:45.440 --> 00:45:48.039
administering versus peer pressure.
881
00:45:48.079 --> 00:45:49.679
I feel uneasy about this.
882
00:45:50.840 --> 00:45:54.760
There it's become fashionable to make fun of offended observer standing,
883
00:45:54.800 --> 00:45:56.280
but we're going to take it out of the classroom.
884
00:45:56.280 --> 00:45:58.280
What's suppose we put a big poster in front of
885
00:45:58.320 --> 00:46:00.920
the city hall, God does not hear the prayer of
886
00:46:00.960 --> 00:46:03.840
a Jew. Could the Jews sue or would they have
887
00:46:03.960 --> 00:46:04.840
standing to sue?
888
00:46:06.039 --> 00:46:08.800
So if there's a state law that requires that poster
889
00:46:08.960 --> 00:46:10.840
to be on all government buildings or a number of
890
00:46:10.880 --> 00:46:13.719
government buildings, we're getting closer to that concern about now
891
00:46:13.760 --> 00:46:18.239
government has formally declared an established religion or disestablished religion,
892
00:46:18.320 --> 00:46:21.519
Jews aren't welcome here. But it's different if we're dealing
893
00:46:21.519 --> 00:46:25.440
with a context where someone just disagrees with or has
894
00:46:26.039 --> 00:46:29.559
something that is put up that they feel like makes
895
00:46:29.559 --> 00:46:30.400
them feel uncomfortable.
896
00:46:30.440 --> 00:46:32.559
That to me seems much more like the pledge of allegiance.
897
00:46:32.599 --> 00:46:36.719
Example, Christ Scott, mean you raised the American legion in case,
898
00:46:37.000 --> 00:46:38.599
I guess supposed to, I've raised it at this point,
899
00:46:38.719 --> 00:46:42.039
there was a line in there about displays that who's
900
00:46:42.159 --> 00:46:46.280
design exhibit its deliberate disrespects for other things they think
901
00:46:46.280 --> 00:46:47.719
that I would have a role to play and some
902
00:46:47.760 --> 00:46:49.880
of the hypotheticals that you can imagine, God, isn't your
903
00:46:49.960 --> 00:46:51.480
prayer to use or things like that.
904
00:46:52.000 --> 00:46:55.719
I think it should, but I'm not sure that's compatible
905
00:46:55.800 --> 00:46:57.840
with what the what Judge Dunkin wrote.
906
00:46:59.400 --> 00:47:00.960
All right, let's ask you this one.
907
00:47:01.000 --> 00:47:04.159
I think somebody raised mood and a line in my
908
00:47:04.199 --> 00:47:06.719
mood about whether or not a requirement or curriculum could
909
00:47:06.760 --> 00:47:10.239
be characterized as exposure is not the touchstone for determining
910
00:47:10.239 --> 00:47:13.280
where whether the line is crossed. So there's debates about
911
00:47:13.280 --> 00:47:16.920
whether exposure law and is sufficient to trigger claim. Does
912
00:47:16.960 --> 00:47:19.840
that play into the free exercise analysis from the.
913
00:47:19.760 --> 00:47:22.280
Fifth Circuit and how you would approach that either one?
914
00:47:22.360 --> 00:47:23.599
Maybe Professor Barclay.
915
00:47:23.280 --> 00:47:26.679
First, Yeah, I think that is relevant. So in mough mood,
916
00:47:27.199 --> 00:47:29.679
it was much more than exposure that was an issue
917
00:47:29.719 --> 00:47:31.679
in those cases. So this is the case coming out
918
00:47:31.719 --> 00:47:35.960
of Maryland where the school district required there to be
919
00:47:36.480 --> 00:47:41.599
readings for children pre k and kindergarten about LGBTQ books,
920
00:47:41.920 --> 00:47:46.480
and the children were not allowed to oubt so while
921
00:47:46.519 --> 00:47:49.639
the book is being read that they're two with material
922
00:47:49.719 --> 00:47:52.719
that the teachers and the school had a record about
923
00:47:53.039 --> 00:47:56.920
was intended to disrupt their thinking about gender norms. So
924
00:47:56.960 --> 00:47:59.320
when you have something like that is much more active,
925
00:47:59.519 --> 00:48:01.599
much more than the fact that the book is just
926
00:48:01.679 --> 00:48:04.880
sitting on the shelf that's just different in kind, then
927
00:48:04.960 --> 00:48:08.400
that can constitute the type of objective, substantial burden on
928
00:48:08.480 --> 00:48:11.920
religious exercise that is necessary for someone to bring a
929
00:48:11.920 --> 00:48:15.400
free exercise client. Note that's very different again than someone
930
00:48:15.480 --> 00:48:19.199
saying I have a religious objection to this poster on
931
00:48:19.199 --> 00:48:21.199
the wall for everybody. You have to take it down
932
00:48:21.239 --> 00:48:24.360
for everybody as opposed to please just let me sit
933
00:48:24.400 --> 00:48:26.280
in a different classroom and then come back when they're
934
00:48:26.320 --> 00:48:28.519
doing this very active thing.
935
00:48:28.800 --> 00:48:31.840
So, where schools are allowing real opt.
936
00:48:31.639 --> 00:48:35.159
Outs that cure the religious exercise problem, there's a parallelism
937
00:48:35.639 --> 00:48:38.760
in saying that in the establishment clause context. In many cases,
938
00:48:38.880 --> 00:48:42.480
allowing opt outs also removes corsion. There might again be
939
00:48:42.519 --> 00:48:46.599
other problems. There might be problems where seeing individuals are
940
00:48:46.639 --> 00:48:49.280
acting as a religious leader. If a teacher is being
941
00:48:49.320 --> 00:48:52.199
asked to read a prayer, is government now controlling a
942
00:48:52.239 --> 00:48:55.920
religious leader. If the government is dictating liturgy, then that's
943
00:48:55.920 --> 00:48:58.840
a problem of government controlling doctrine under one of the
944
00:48:58.840 --> 00:49:01.519
hallmarks of an established religion. There are other reasons why
945
00:49:01.519 --> 00:49:04.679
we might be concerned about government leading religious exercise that
946
00:49:04.760 --> 00:49:07.000
if there are true opt outs, then coercion is not
947
00:49:07.039 --> 00:49:09.159
one of them in the establishment claus context, just like
948
00:49:09.199 --> 00:49:12.360
coercion isn't an issue in the free exercise context when
949
00:49:12.360 --> 00:49:13.800
we allow real opt outs as well.
950
00:49:15.760 --> 00:49:19.159
Mahmoud is somewhat orthogonal to this case because it's about
951
00:49:19.199 --> 00:49:22.800
opt outs and was already decided in the shep an
952
00:49:22.840 --> 00:49:26.440
Angle versatiality that opt outs were not sufficient to cure
953
00:49:26.480 --> 00:49:31.360
the establishment clause problem. Also, in Mahmood is somewhat ambiguous.
954
00:49:31.440 --> 00:49:35.760
The court goes on for some pages about the specific
955
00:49:35.880 --> 00:49:39.599
content of the curriculum that the court finds objectionable, and
956
00:49:39.639 --> 00:49:43.159
then concludes by saying, well, no, anything that parent thinks
957
00:49:43.480 --> 00:49:46.960
is going to interfere with their child's religious saw development.
958
00:49:47.480 --> 00:49:50.559
Raises strict scrutiny. And so apparently if a child, if
959
00:49:50.599 --> 00:49:55.039
a parent objects to something that isn't religiously specific at all,
960
00:49:55.519 --> 00:49:58.920
but that undermines religious beliefs, you teach the theory of evolution,
961
00:49:59.079 --> 00:50:02.639
say geology. The claim that the Earth is millions of
962
00:50:02.760 --> 00:50:05.719
years old is inconsistent with the young Earth creationism. There
963
00:50:05.760 --> 00:50:08.599
is at least a colorable opt out claim. So it
964
00:50:08.679 --> 00:50:11.599
just seems like a fundamentally different kind of claim and
965
00:50:11.840 --> 00:50:14.360
mal mood. It's relevant here because it has to do
966
00:50:14.440 --> 00:50:19.079
with the more generally the authority of parents to direct
967
00:50:19.079 --> 00:50:21.880
the religious upbringing of their children, which is inconsistent with
968
00:50:21.960 --> 00:50:24.679
state religion. But it seems to me to be largely
969
00:50:24.719 --> 00:50:27.760
in make weight for constitutional claims that have other bases.
970
00:50:29.039 --> 00:50:29.679
Bandy, let me.
971
00:50:29.639 --> 00:50:32.239
Agree with you really briefly that the court in Kennedy
972
00:50:32.239 --> 00:50:35.719
didn't purport to disturb angle or the school prayer cases.
973
00:50:35.800 --> 00:50:38.840
So if so today the court might decide then differently,
974
00:50:38.920 --> 00:50:41.639
the court might say under the six historical hallmarks, these
975
00:50:41.679 --> 00:50:45.199
cases are problematic under the these hallmarks, not the coersion hallmarks.
976
00:50:45.639 --> 00:50:48.800
But they're not deciding them again today, they're not you
977
00:50:48.800 --> 00:50:52.559
know the law, And so I agree those are still
978
00:50:52.599 --> 00:50:55.199
good law, So at least in the context of school prayer,
979
00:50:55.280 --> 00:50:57.519
even if there's opt outs, we don't need to worry
980
00:50:57.519 --> 00:50:59.199
about that. That there's no one asking the court to
981
00:50:59.239 --> 00:51:02.000
overturn those right now, and certainly ports like the Fifth
982
00:51:02.039 --> 00:51:03.119
Circuit are bound by them.
983
00:51:03.320 --> 00:51:04.280
The other thing I wanted to.
984
00:51:04.239 --> 00:51:08.239
Say is, I think this is an interesting hypothetical that
985
00:51:08.280 --> 00:51:10.639
it is brought up about not mood that you just raised.
986
00:51:10.679 --> 00:51:12.039
Does this mean everybody who has.
987
00:51:11.920 --> 00:51:15.880
Objections to geology or will vote had a hypothetical? What
988
00:51:15.920 --> 00:51:19.159
if people suddenly have a religious objection to mass. Note
989
00:51:19.239 --> 00:51:22.679
that's not happening. We're not seeing ampeedi of students exodus
990
00:51:22.719 --> 00:51:26.559
for the math objectors. Why because students have long and
991
00:51:26.840 --> 00:51:29.280
religious people have long had views about human sexuality that's
992
00:51:29.280 --> 00:51:32.559
important to religion in ways that math ejections aren't. But also,
993
00:51:32.559 --> 00:51:36.079
there's a number of schools today, and I think why
994
00:51:36.199 --> 00:51:38.360
is one of them you could opt out for any
995
00:51:38.400 --> 00:51:41.239
of those reasons. Right now, schools are accommodating for lots
996
00:51:41.280 --> 00:51:41.800
of reasons.
997
00:51:41.960 --> 00:51:42.280
We don't.
998
00:51:42.480 --> 00:51:45.360
Again, we don't see a stand peed of students leaving
999
00:51:45.360 --> 00:51:48.440
for those reasons. They might pose different questions than Mahmoud did,
1000
00:51:48.960 --> 00:51:52.599
But I think that's a hypothetical that hasn't materialized as
1001
00:51:52.599 --> 00:51:53.679
any sort of real problem.
1002
00:51:53.719 --> 00:51:56.480
Following that mood, the final question.
1003
00:51:56.480 --> 00:51:58.320
We've had a lot of great hypos going around, but
1004
00:51:58.480 --> 00:52:01.639
the opinion itself posesspos. I'm intioned in panelst thoughts on
1005
00:52:01.639 --> 00:52:04.400
that so deficser an opinion refers to make in Second
1006
00:52:04.400 --> 00:52:06.920
Inaugural Address and the religious language that appears there, and
1007
00:52:06.960 --> 00:52:10.559
the Declaration of Independence with its appeals to Nature's God, Creator,
1008
00:52:10.760 --> 00:52:13.559
the supreme judge of the world, and divine providence. Could
1009
00:52:13.599 --> 00:52:16.960
would the analysis be different? First Professor Kaufmann and Professor Barclay.
1010
00:52:17.400 --> 00:52:20.719
If Texas required all classrooms to have the text of
1011
00:52:20.800 --> 00:52:24.119
lincoln Second Inaugural Address, the text of the Declaration Pendants,
1012
00:52:24.159 --> 00:52:26.760
including the religious portions of both those documents.
1013
00:52:27.559 --> 00:52:30.880
It is the case that there are historical documents that
1014
00:52:31.000 --> 00:52:35.159
don't refer to religion. Yeah, I think that's different from
1015
00:52:35.199 --> 00:52:39.039
putting the state just directly addressing the children as the
1016
00:52:39.119 --> 00:52:42.639
Tenth Commandments do and say I am the Lord by God,
1017
00:52:43.000 --> 00:52:45.920
thou shalt have no other gods before me. This is
1018
00:52:45.960 --> 00:52:49.519
the view of the Texas legislature. Just a fundamentally different thing.
1019
00:52:51.039 --> 00:52:54.480
Yes, I think those are all obviously fine under the
1020
00:52:54.559 --> 00:52:57.760
establishment clause. I think they're a good example why if
1021
00:52:57.760 --> 00:53:01.320
we just had some free flooding proposifists thing inculcating religion
1022
00:53:02.000 --> 00:53:04.159
is bad. It is an example of why that test
1023
00:53:04.159 --> 00:53:06.639
would prove far too much. And those sorts of important
1024
00:53:06.679 --> 00:53:10.960
historical documents, Lincoln Section Inaugural, that Couestion of Independence, Magna Carta,
1025
00:53:11.039 --> 00:53:13.480
which involves a lot of religious texts, those would suddenly
1026
00:53:13.559 --> 00:53:17.079
be up for grabs if the tests were the ones
1027
00:53:17.079 --> 00:53:21.000
that Professor Kompliment is proposing. And I also think that
1028
00:53:21.239 --> 00:53:23.400
Town of Greece is a case that answers this question
1029
00:53:23.400 --> 00:53:25.280
and some of the hypos we were talking about Andy
1030
00:53:25.679 --> 00:53:28.960
about being explicit about Jesus in Town of Greece, the
1031
00:53:29.000 --> 00:53:32.039
prayers that were being offered there. There was a mix
1032
00:53:32.079 --> 00:53:34.559
of prayers, but some of them very explicitly. We're referring
1033
00:53:34.599 --> 00:53:38.239
to Jesus and other really religious elements. And the Supreme
1034
00:53:38.239 --> 00:53:41.639
Court has already upheld that, and so's that's far more religious.
1035
00:53:41.679 --> 00:53:44.800
And you could argue the type of peer pressure that
1036
00:53:45.079 --> 00:53:47.840
some would like to say countsl's coercion of You can
1037
00:53:47.920 --> 00:53:49.679
walk out of the city council, but you might feel
1038
00:53:49.679 --> 00:53:51.840
like I need to stay here, and the court said
1039
00:53:52.039 --> 00:53:54.840
no coercion there. That's not a violation of the establishment clause.
1040
00:53:54.880 --> 00:53:57.800
To me, the Ten Commandments is an easier case than
1041
00:53:57.800 --> 00:53:58.159
that one.
1042
00:53:58.920 --> 00:54:02.119
The court said before has a doctor a role of
1043
00:54:02.239 --> 00:54:06.639
grandfathering old practices that if you started them up anew
1044
00:54:07.159 --> 00:54:10.239
would be an establishment close violation. But they've been around
1045
00:54:10.239 --> 00:54:12.719
for a while. Again, if the state decides to erect
1046
00:54:12.760 --> 00:54:16.239
an enormous cross tomorrow, I think that there would be
1047
00:54:16.239 --> 00:54:19.119
a problem. It's very hard to tell, given the state
1048
00:54:19.159 --> 00:54:21.559
of the law after Kennedy. It depends on whether you
1049
00:54:21.559 --> 00:54:24.480
can fit it into a hallmark or not. And the
1050
00:54:24.599 --> 00:54:27.840
meaning of the hallmarks test is quite contestable.
1051
00:54:28.440 --> 00:54:32.400
But there is a deep historical tradition of posting Lincoln's
1052
00:54:32.400 --> 00:54:37.199
second inaugural on classroom walls like surely some do. But
1053
00:54:37.239 --> 00:54:39.639
it's not as though I'm aware of history of states
1054
00:54:39.639 --> 00:54:41.000
passing laws saying.
1055
00:54:41.760 --> 00:54:43.480
Specific historical documents.
1056
00:54:44.039 --> 00:54:46.920
Well, no, but this one we're talking about that Ten Commandments,
1057
00:54:46.920 --> 00:54:48.800
we're not talking about really.
1058
00:54:48.880 --> 00:54:51.960
Stone depends on the secular purpose. I can easily imagine
1059
00:54:51.960 --> 00:54:54.199
a secular purpose for lots.
1060
00:54:54.239 --> 00:54:55.920
I'm asking that stone.
1061
00:54:56.159 --> 00:54:58.519
Stone is a secular purpose case.
1062
00:54:58.760 --> 00:55:00.000
Right, And it's not the law anymore.
1063
00:55:00.199 --> 00:55:04.360
So I just said, well, I don't at least we
1064
00:55:04.519 --> 00:55:06.840
go and if this circuit is not the law for
1065
00:55:06.880 --> 00:55:07.840
sure anymore.
1066
00:55:08.679 --> 00:55:10.199
And then who knows what's prohibited.
1067
00:55:10.880 --> 00:55:14.119
But if we're dealing with a type of text that
1068
00:55:14.159 --> 00:55:16.960
doesn't have a tradition that was like Lincoln second in
1069
00:55:16.960 --> 00:55:19.000
aug world, just assume, for the sake of my hypothetical,
1070
00:55:19.039 --> 00:55:21.800
the court finds there's not a deep tradition that display.
1071
00:55:22.079 --> 00:55:25.119
Does that violate your establishment clause test because there's religious
1072
00:55:25.159 --> 00:55:26.480
inculcation taking place there.
1073
00:55:27.280 --> 00:55:29.119
I don't think that it's religious inculcation.
1074
00:55:29.960 --> 00:55:33.400
Why it has some religious material in it.
1075
00:55:32.840 --> 00:55:35.840
It reports historically the fact that this is something that
1076
00:55:35.880 --> 00:55:39.599
Lincoln said that is in fact the case, whatever your
1077
00:55:39.639 --> 00:55:41.440
religious belief, he really said that.
1078
00:55:42.280 --> 00:55:43.840
Okay, but go ahead, Joe.
1079
00:55:44.760 --> 00:55:46.079
This is been a terrific back and forth.
1080
00:55:46.199 --> 00:55:47.960
I didn't want to do my moderator duty and say
1081
00:55:48.039 --> 00:55:49.880
at the grew over our hour now, But well.
1082
00:55:49.880 --> 00:55:53.599
That's a good duty. That's an important Andy and I
1083
00:55:53.599 --> 00:55:54.440
are having too much fun.
1084
00:55:55.119 --> 00:55:56.920
We are, but we can do that offline.
1085
00:55:57.039 --> 00:55:59.599
It's true, wonderful.
1086
00:56:00.000 --> 00:56:02.000
Thank you both so much for joining us today for
1087
00:56:02.039 --> 00:56:05.320
a fascinating discussion, and of course thank you to Joe
1088
00:56:05.320 --> 00:56:08.480
for moderating. If our audience is interested in learning more
1089
00:56:08.519 --> 00:56:10.920
about all of our programming here at the Federalist Society,
1090
00:56:11.199 --> 00:56:14.000
please visit our website at fedsock dot org that is
1091
00:56:14.119 --> 00:56:16.719
f E. D s oc dot org, or feel free
1092
00:56:16.760 --> 00:56:18.639
to send us your feedback. We always love to hear
1093
00:56:18.679 --> 00:56:21.719
it at fedsockforums at fedsock dot org.
1094
00:56:22.119 --> 00:56:25.159
And with that we are a journ Thank you so much, Thank.
1095
00:56:24.960 --> 00:56:29.519
You thanks for listening to fedsock Forums, a Federalist Society podcast.
1096
00:56:29.880 --> 00:56:32.440
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1097
00:56:32.480 --> 00:56:35.440
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1098
00:56:35.440 --> 00:56:37.320
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