Religious Voices in Public Places
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Now, there are other rationales that explained the earlier school prayer and Bible reading cases that a number of the justices in Lee v. Weisman also brought into their opinions.
And the other rationales have to do with the idea of the government and its voice being secular: The government should not choose a religious perspective or promote a religious perspective. Lupu: People are compelled to attend them. It is not in the strong sense. Kennedy said in effect: Oh, everybody wants to be at graduation.
Can the principal give a prayer? Can an invited clergyman give a prayer? Forum: Can the class valedictorian do whatever he or she wants to do? And maybe the valedictorian this year wants to give a short prayer.
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The principal at the school may not sponsor or promote a religious exercise. So if the valedictory speech has to be shown to the principal before it is delivered and the principal knows that it includes a prayer, the school is going to be held responsible for the content of the speech, including the prayer. The school owns that speech — is responsible for that speech — when it supervises and signs off. Forum: If at this public high school the students invite a speaker who happens to be a clergyman and who happens to show up in his or her clerical garb but does not otherwise invoke religion in his or her remarks, is that okay?
How did it come to pass that the students had authority to invite guest speakers? It would be very unusual in a commencement to give students that authority, unless it was part of some elaborate plan in which the administration was involved, in which case the administration would be responsible for the content of what was said by that outside speaker. So if someone shows up wearing a collar, that in and of itself is not a problem.
Lupu: The cases so far about public universities have permitted nonsectarian invocations at universities on the theory that students are older or less impressionable and therefore less subject to coercion or of having a feeling of coercion. If coercion is the operative theory here, then perhaps that distinction is sensible. But because Lee v. Weisman was focused on coercion, the courts that have addressed this public university issue have been able to distinguish the cases and essentially treat public university commencements as not very different from other public ceremonies — the inaugurations of presidents or mayors or governors, for example — where sometimes, likewise, there will be an invocation or benediction, which we have tended to permit in this culture, including in the law, as somehow serving a kind of ceremonial — historical ceremonial — function.
So the university commencement is sort of the bridge case between the high school commencement prayer not allowed and the inauguration prayer allowed.
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But no state law is ever going to tell a private university that it may or may not have a prayer. Lupu: The military academies are government-controlled universities, and there are a number of cases now that say the military academies may not coerce prayer. So 30 years ago there was compulsory chapel at West Point.
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It was on Sunday, and it was compulsory. You had to attend chapel. And the Court of Appeals here in the District of Columbia said, no, you may not compel cadets to attend. You can offer it. You can make it available. You can have chaplains in the military. You can have chaplains on the West Point campus.
Religious Voices in Public Places
People did not have to eat, but they had to attend. All the cadets were there, and there would be a prayer recitation — not a commencement, right? Forum: Why did it take until the s for the Supreme Court to weigh in on religious expression in public schools? And why did it need to act?
Second, there had been conflicts in America back to the middle of the 19th century about religious ceremonies in public schools — Protestants versus Catholics. And the conventional pattern was that it was a Protestant prayer or Protestant Bible reading that was going on in the public schools in a great many states.
And in a great many places authorities thought of it as nonsectarian because all Protestants could comfortably say it. But what really challenged us was the big wave of Catholic immigration. You had this kind of Protestant religious expression in the schools.
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Now fast-forward to when the Supreme Court first said that the Establishment Clause applies to the states. And the court reinforced this idea that the state may not pay for religious education. And I think a light went on in the Supreme Court, especially with Justice Hugo Black and others, that there was something deeply unfair in this. It is going to be a secular enterprise so that you can feel safe sending your children there and then sending them to a Catholic education after school, Sunday school or something else.
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On March 18, the Grand Chamber reversed and held in favor of Italy. The Court stated clearly that the crucifix is a religious symbol, that atheism is a protected religious belief and that public schools must be religiously neutral. But the Court held that a "passive display" of a crucifix in a public school classroom was no violation of religious freedom -- particularly when students of all faiths were welcome in public schools and free to wear their own religious symbols. The Court held further that Italy's policy of displaying only the crucifix was no violation of religious neutrality, but an acceptable reflection of its majoritarian Catholic culture.
With European nations widely divided on whether and where to display various religious symbols, the Court concluded that Italy must be granted a "margin of appreciation" to decide for itself how and where to maintain its Christian traditions in school.
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While not entirely convergent in their religious symbolism cases, the American and European high courts now hold six teachings in common. First, tradition counts in these cases. In American courts, older religious displays tend to fare better than newer displays. The longstanding customary presence of a religious symbol in public life eventually renders it not only acceptable but indispensable to defining who we are as a people.
In Lautsi, Judge Bonello put this argument strongly in his concurrence: "A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people.
Second, religious symbols often have redeeming cultural value. American courts have long recognized that a Decalogue is not only a religious commandment but also a common moral code, that a cross is not only a Christian symbol, but also a poignant memorial to military sacrifice. When passively and properly displayed, the meaning of a symbol can be left in the eye of the beholder -- a sort of free market hermeneutic. The Lautsi court echoed this logic.
While recognizing the crucifix as religious in origin, the Court accepted Italy's argument that "the crucifix also symbolized the principles and values" of liberty, equality and fraternity that "formed the foundation of democracy" and human rights in Italy and well beyond. Third, local values deserve some deference. In America, the doctrine of federalism requires federal courts to defer to the practices and policies of individual states, unless there are clear violations of federal constitutional rights to free exercise and no establishment of religion.
The Supreme Court has used this doctrine to uphold the passive display of crosses and Decalogues on state capitol grounds. The Lautsi Court uses the European "margin of appreciation" doctrine in much the same way. Lacking European consensus on public displays of religion and finding no coerced religious practice or indoctrination in this case, the Court left Italy to decide for itself how to balance the religious symbolism of its Catholic majority and the religious freedom and education rights of its atheistic minorities.
Fourth, religious freedom does not require the secularization of society. The United States Supreme Court became famous for its image of a "high and impregnable wall of separation between church and state," that left religion hermetically sealed from political life and public institutions. But the reality today is that the Court has abandoned much of its strict separatism and now allows religious and non-religious parties alike to engage in peaceable public activities, even in public schools.
Fifth, religious freedom does not give a minority a heckler's veto over majoritarian policies. Until recently, American courts allowed taxpayers to challenge any law touching religion even if it caused them no real personal injury. This effectively gave secularists a "veto" over sundry laws and policies on religion -- however old, common or popular those laws might be.