This column by ACRU Senior Legal Analyst Ken Klukowski was published June 16, 2014 on Breitbart.com.
Today the Supreme Court denied review in an important First Amendment case, Elmbrook School District v. Doe. But there’s big news in a dissent that accompanied this denial, declaring that big change is underway for religious liberty.
When the Supreme Court handed down its blockbuster religious-liberty case Town of Greece v. Galloway on May 5, upholding prayer during meetings of legislatures and local governments, Breitbart News’ analysis was that the Court signaled the principles it was declaring would apply to all religious speech and religious displays.
These principles would apply whenever a plaintiff attempts to block a faith-based message or display — such as a Ten Commandments display or a cross that’s part of a war memorial — under the First Amendment’s Establishment Clause. That’s the constitutional provision that forbids the government from officially establishing a religion.
Since 1989, the Supreme Court has held that the Establishment Clause is violated if a fictitious “reasonable observer” would think the government is endorsing religion or a religious message. That stunning rule was adopted by a 5-to-4 vote and has radically restricted the nature of religious freedom in America ever since, in stark contrast to over two centuries of law and American history.
In Town of Greece, the Supreme Court signaled a new course. Its 2014 opinion was written by Justice Anthony Kennedy, who also wrote for the four dissenting justices in the 1989 case that created the “endorsement test.” The Court argued — as the dissenters argued in 1989 — that the Establishment Clause is only violated when a person is coerced by the government to participate in a religious activity that violates their conscience. The First Amendment requires a “coercion test,” not an “endorsement test.”
For many years, Elmbrook School District has held its graduation ceremonies in a church. The U.S. Court of Appeals for the Seventh Circuit affirmed a lower-court ruling that this location for school graduations is an unconstitutional endorsement of religion. But several judges on the Chicago-based appeals court dissented, arguing why the First Amendment allows these ceremonies.
When the Court denied review in Elmbrook today, Justice Antonin Scalia — joined by Justice Clarence Thomas — dissented from the Court’s decision to reject the case, writing:
Some there are — many, perhaps — who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.
My own aversion cannot be imposed by law because of the First Amendment. Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment… this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.
All that is vintage Scalia. But it is noteworthy that Scalia and Thomas later add:
We recently confronted and curtailed this errant line of precedent in Town of Greece v. Galloway… First, Town of Greece abandoned the antiquated “endorsement test,” which formed the basis of for the decision below… Second, Town of Greece made categorically clear that mere offense does not equate to coercion in any manner relevant to the proper Establishment Clause analysis… Last, but by no means least, Town of Greece left no doubt that the Establishment Clause must be interpreted by reference to historical practices and understandings.
If they’re right, then as Breitbart News reported on Town of Greece, there could be a historic change in the making. Of all the ongoing cases nationwide, we’ll likely learn whether Scalia is right in the case involving the Mt. Soledad Veterans Memorial, which — as Breitbart News has also previously reported — the Supreme Court is likely to review either this year or next.