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Friday, May 14, 2010

Religion Clause Issues in the Strangest Places

Later in the same walk I blogged about yesterday I was brought up short (ok, no more self-referential links) by something I saw on the dashboard of a New York City Department of Buildings car parked on the street.  It was a prayer card of the type I remembered from my childhood.

So here was my thought sequence, more or less:

1.  Religion in a city vehicle. 

2. Of course no problem, it's not the state acting (or even endorsing, since we can assume it's just letting the driver have the card in the car with her).

3. What if it was a prayer bumper sticker ("Jesus Saves" or even simply "Pray") or something like that?  That's different, I think, because ... it's attached to the car?

4. What if the car was assigned to that person for an extended, in the sense that it was his mobile cubicle?  Does that render the "attached to the car" distinction invalid?  But of course I don't know that and I'm not likely to know that.  For all I know, if I see that bumper sticker the City of New York has gone on record for the proposition that Jesus Saves, or that we should pray.  At this point my legal knowledge intrudes and I think about Wooley v. New Hampshire -- though I'm not sure at that point what relevance the analogy has.

5. Or maybe it's that the card is inside the car, although clearly visible to a passer-by.  What's the relevance of that?  That it suggests private religious expression rather than proselytizing?

I raise all this because these thoughts (again, more or less) hit me before I had a chance to map these facts onto religion clause doctrine; they were, essentially, my intuitions.  They seem to tell me this:

a. My gut doesn't accept the coercion-only test for the Establishment Clause -- if not, I wouldn't have so immediately thought there'd be a problem if the prayer card had instead been a bumper sticker.

b. My gut also doesn't accept the non-preferentialist approach to the Establishment Clause -- otherwise, I suppose I wouldn't have been troubled by a bumper sticker that said "Pray."

c. My evaluation immediately gravitated to the idea of endorsement.  (Now this may be a cheat, because I suspect at this point my legal knowledge popped into my head and I latched on to the concept of endorsement; that is, it wasn't purely an intuition about what's appropriate and what's not.)  But still, I did pretty immediately ask myself whether the card suggested that the Department of Buildings was suddenly touting Catholicism.

d. My "endorsement" test required me to make an awful lot of assumptions about what was going on in the situation.  I had to know, for example, that people carried prayer cards around and often put them on their dashboards.  I don't know what exactly to make of this, except that context and personal background is always going to matter when evaluating these issues.

Any other reactions, gut or otherwise?

Posted by Bill Araiza on May 14, 2010 at 09:18 AM | Permalink


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My observation is that there is a lot more government religion around than you perceive. To me, every funeral, for instance, is a religious observation. Every graveyard is a religious monument. Every "moment of silence" is a religious ritual.

It is common to confuse "religion" with "faith" or "belief." Religion is more often than not just stupid ritual, like circumcision, self-flagellation, genuflection, crossing yourself and fiddling with your rosary. Nationalist parades are religious expressions, as are St Patrick's day and Halloween. So is the circulating office birthday card.

Religion dulls the mind. Government-sponsored birthday cards would be as obnoxious as government-sponsored prayer is.

Posted by: Jimbino | May 14, 2010 5:23:47 PM


You wrote: "I did pretty immediately ask myself whether the card suggested that the Department of Buildings was suddenly touting Catholicism." Really? If so, this may demonstate the subjectivity of the ostensibly objective "reasonable observer" test. Maybe that was your point?

Pretending to walk by and see what you described, I might (also reasonably) conclude that the worker/driver attended a funeral of someone who is remembered on the print side of the card -- which is the dominant contemporary use of those cards in my own (Catholic) experience. So, I would have guessed that the employee has a prayer card from the funeral of someone he/she is remembering.

I would resist the assumption that the DEPARTMENT was touting Catholicism. Your bumper sticker example is a better example of the Department's taking a position.

I have a picture of myself at an audience with the Pope John Paul II on the wall of my office at a state university. You've been in my office. Would you think that FIU is endorsing Catholicism or would you think that Tom Baker is the "endorser" of the photo?

This discussion reveals the granularity of "totality of the circumstances" approaches, the discretion they give the decisionmaker to draw conclusions. At a trial, I suppose the adversarial process might fill in details you as a reasonably walker by did not have: what was on the back of the card? is the car designated to a person? did a supervisor approve or acquiesce in the placement of the card? has the card been there for a long time (a factor that makes a difference to Steve Breyer) or was it from a funeral earlier this week? Etc.

This breakdown -- which could go on and on beyond your questions and mine -- reveals the nature of the legal fiction, perhaps. It is not really the "reasonable observer" test. It is the "reasonable judge" test. At most, it amounts to an expectation that judges be "sincere" not that they be "objective." The skeptic might suggest that this is why there is an odd number of justices on the SCOTUS.

Tom Baker
FIU College of Law

Posted by: Thomas E. Baker | May 14, 2010 11:41:18 AM

Hi, Bill. My reaction is that this is probably the way that many courts analyze these sorts of issues, post-endorsement. That is, on the basis of a gut reaction. The difficulty with this approach is exactly the one that you raise at d -- it's tough to administer a legal standard even-handedly when this sort of thing is the basis of judgment.

I do not think it is impossible, though. But in order to make it work, one needs to be prepared, as a judge, not to interfere in these sorts of cases unless one is comfortable making the claim that one's own gut reaction to the situation is the *only reasonable* gut reaction. At that point, judicial interference seems warranted. But, at least in my view -- and if this is really the standard we're going to use -- not before.

Posted by: Marc DeGirolami | May 14, 2010 9:50:31 AM

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