Displaying Religion on Public Property

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 Displaying Religion on Public Property

The display of religious objects in public places in America has become a very contentious and highly publicized issue. Both sides have competing rights, which is one of the main reasons for the controversy.

It takes a multi-step analysis to determine whether a religious display on government property is constitutional. The first question to ask is who is funding and erecting the display? When a private group wants to erect a religious monument on public property, a free expression analysis should be conducted, considering factors such as the type of forum. A separate set of questions must be raised whenever a government entity attempts to post a religious document.

Displays of religious symbols on public property can be legal, but they must pass constitutional muster by not violating the First Amendment establishment clause, which requires government neutrality regarding religion. Courts use the Lemon test and the endorsement test to determine whether a particular display violates the establishment clause.

In the Lemon test, three questions are asked:

  1. Did the state actor have a secular purpose for posting the documents?
  2. Was the primary effect of the action to advance or promote religion?
  3. Was government involvement excessively entangled with religion?

Government action must pass constitutional muster if it is to survive.

The endorsement test is a more recent test that has gained popularity in the courts. Sandra Day O’Connor first devised this test in her concurring opinion in Lynch v. Donnelly, a 1983 case involving a holiday display containing religious elements in a Pawtucket, Rhode Island, park. The objective of this approach is to examine the following questions: Did the state actor subjectively try to promote religion through its actions, and would a rational observer interpret the state’s actions as endorsements of religion?

Before a government official posts or engages in any religious expression, both elements should be examined.

The June 2005 decisions by the U.S. Supreme Court demonstrate how even the highest court can reach very different conclusions in cases involving religious display. McCreary County v. ACLU and Van Orden v. Perry involved public displays of the Ten Commandments. Using the Lemon test, Justice David Souter ruled that the Ten Commandments displayed in Kentucky’s two courthouses conveyed a religious message, failing to satisfy the first prong of the Lemon test. Therefore, the majority of the Court found the displays in McCreary unconstitutional.

In Van Orden, also decided the same day as McCreary, the high court ruled that a Ten Commandments monument on the grounds of the Texas State Capitol was constitutional. In the plurality opinion for the Court, Chief Justice William Rehnquist dismissed the Lemon test as inappropriate for evaluating this case. (Votes were 4-1-4.) Instead, Rehnquist stressed the nature and setting of the monument. The monument was a part of a larger display of 17 monuments and 21 historical markers honoring “people, ideals, and events that define Texas identity.”

In determining that the monument was of a secular meaning and thus constitutional, Justice Stephen Breyer wrote that because the monument had been on display for 40 years before being challenged, “it suggests more strongly than any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as a government effort to favor a particular religion.”

That same year, the 6th Circuit Court of Appeals held in ACLU v. Mercer County that another Kentucky County courthouse’s Ten Commandments display was constitutional. An individual in Mercer County had requested permission to hang a display in the courthouse titled “Foundations of American Law and Government.”

Among the documents displayed were the Ten Commandments, the Mayflower Compact, the Declaration of Independence, the Magna Carta, the Star-Spangled Banner, and the Bill of Rights. Because the Ten Commandments were part of a display and not more prominently displayed than any of the other documents, the 6th Circuit affirmed the lower court’s ruling that the display was meant to educate the public rather than endorse religion.

According to the Court, State Legislators Can be Opened in Prayer by Chaplains

In Marsh v. Chambers (1983), the Supreme Court bypassed its typical establishment clause analysis under the three-part Lemon test (which looks for a secular purpose, an effect that does not further religion, or a desire to avoid “excessive entanglement” of church and state). It held that historical practice dating back to the first U.S. Congress established that state legislatures had the right to hire chaplains to begin proceedings with a prayer. While the Supreme Court has not yet resolved all issues connected to such prayers, it has generally been more tolerant of religious expression in settings involving adults than in settings involving adolescents, who are considered more susceptible to peer pressure.

Many of the amendments that have been proposed to allow for voluntary public prayer in public schools apply to public buildings in general. The question of whether prayer should commence public meetings continues to be debated by local governments.

The Court has Ruled that Religious Groups Can Rent Public School Buildings

Several cases, including Lamb’s Chapel v. Center Moriches Union Free School District (1993) and Good News Club v. Milford Central School (2001), established the rights of religious groups to rent public school buildings on an equal basis with other groups once school policies had effectively established such locales as open public forums.

In the first case, a school house was used for a religious film showing, while in the second case, a religious club met after school. As the school officials treated religious expression more harshly than non-religious expression, these decisions have been litigated as free speech violations.

What Are The Competing Sides in the Argument?

Religion and public property are the subjects of controversy because of two competing government interests, both equally valid and important:

The Freedom of Religion
The First Amendment to the U.S. Constitution includes the Freedom of Exercise Clause. Citizens of the United States are generally permitted to:

  1. Believe in any religion, and
  2. To act in connection to any religion.

The Separation of Church and State
The First Amendment to the Constitution also contains the Establishment Clause. In general, it has been held to show that the government cannot dictate religion or take a position on religion.
The two competing goals will often clash when a religious object is placed on display in a public space. Ultimately, it is up to the courts to decide which side should prevail. The courts will consider a variety of factors when making this decision.

What Factors Will A Court Consider?

A court will consider many factors when deciding whether to remove a religious object.

Generally, the court will consider:

  • The religious significance of the displayed object,
  • The size or visibility of the displayed object,
  • The display of other religious symbols,
  • The historical background of the display, and
  • The proximity of the displayed object to the public property.

Do I Need an Attorney to Handle My Religion and Public Property Issue?

Suppose you think that a religious display on public property should be taken down, or you are trying to protect a religious display. In that case, it is recommended that you contact a government lawyer. Only an attorney can explain the relevant issues and protect your rights.

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