Ruling on Jesus statue is latest in conflicting Establishment Clause decisions

Published: Friday, June 28 2013 9:50 a.m. MDT

But FFRF President Annie Laurie Gaylor said Christensen relied on the recollection of one person to establish the motivation behind the statue and dismissed the fact that the plaque honoring veterans wasn't erected until 2010, after some people complained.

"The judge’s ruling is tortured because basically he is saying a ski slope is now a museum. That a religious shrine doesn’t have a religious purpose," Gaylor said. "He says it's OK to violate the Constitution by having the government permit a Jesus shrine on public property because it's been up for so long. You can’t justify something that's wrong because it’s a tradition."

Gaylor said she didn't expect that type of ruling coming from an Obama appointee like Christensen. FFRF has not decided whether to appeal.

Murky guidance

Christensen applied past Supreme Court and appellate court rulings involving crosses and monuments of the Ten Commandments on public lands and spaces in reaching his decision. Those cases and others have come up with standards such as the Lemon Test or the so-called Reindeer Rule to decide whether religious symbols like crosses and creches have a secular purpose or constitute government endorsement of religion.

In applying those standards and other analyses, justices have found that Ten Commandments displays in schools and courts are unconstitutional, but that those erected on grounds surrounding state and local government buildings comply with the First Amendment.

The high court ruled 5-4 in 2010 that a veterans memorial cross in California's Mohave Desert didn't violate the Constitution, overturning the 9th Circuit Court of Appeals, which ruled a year later that another memorial cross on Mount Soledad near San Diego violated the First Amendment's Establishment Clause.

Rassbach said nonverbal speech, such as monuments or memorial crosses, does complicate the issue because their interpretation can change over time and mean different things to different people.

He said some clarity on the issue could come if the Supreme Court takes another Becket Fund case involving a high school graduation ceremony that has been held for the past decade in a Christian church. The Elmbrook Schools system in Wisconsin has appealed a 7th Circuit Court ruling that renting the church was unconstitutional because of the pervasive religious environment of the church auditorium where the ceremonies are held.

But a decision on whether to take up that appeal likely won't be made, Rassbach said, until the justices decide a case involving prayers held before council meetings in the town of Greece, N.Y. The 2nd Circuit Court of Appeals has ruled the prayers violate the Establishment Clause because they are primarily Christian. The town appealed, arguing its system of allowing citizens to volunteer to pray doesn't discriminate on who prays.

The high court decided in 1983 that legislative prayers are constitutional unless the prayers are used “to proselytize or advance any one, or to disparage any other, faith or belief.” But some legal scholars say that rationale caused more confusion than clarity on who can pray and what can be said.

Rassbach said that lawyers and judges hope the Greece decision, which could come before the end of the year, will be an opportunity for the court to provide better guidance for future establishment law cases involving verbal and nonverbal speech.

"Even the justices have said the Establishment Clause jurisprudence is a mess and they need to fix it," he said. "Some of us think the Greece decision will be the one where they start doing that."

Email: mbrown@deseretnews.com

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