Dispatches from the Creation Wars

I wrote last month about a magistrate judge recommending a preliminary injunction against a released time program in Indiana where kids are let out of school to attend religion classes on school grounds. The federal judge in the case accepted that recommendation and issued the injunction.

The ruling analyzed the situation under both the Lemon test and the Supreme Court’s ruling in McCollum, which invalidated a released time program where the religious instruction took place on school property, as opposed to Zorach, where the court upheld a released time program where the religious instruction took place off school property. On the McCollum/Zorach analysis:

The court is persuaded by Magistrate Judge Cosbey’s excellent analysis of this issue, noting that McCollum’s core principle prohibited “the use of tax-supported property for religious instruction” and “the utilization of tax-established and tax supported public school system to aid religious groups to spread their faith.” Further, defendant offers no rebuttal to the cases the report and recommendation cites, all of which note the importance of where a religious instruction program is located. Indeed, as Magistrate Judge Cosbey stresses, while courts have upheld religious time release programs held off of school grounds, defendant cannot point to a program conducted on school property that has been held to be constitutional. Accordingly, the court agrees that the comparison of McCollum and Zorach with this case supports plaintiff’s contention that she is likely to succeed on the merits of her case.

And on the Lemon test analysis:

However, the court strongly agrees with the magistrate judge that defendant fails to survive Lemon’s “effects test.” In this portion of the Lemon test, the court must determine whether allowing ACHC to conduct religious instruction on school property during school hours conveys a “message of endorsement or disapproval.” When the court finds “that a reasonable person could perceive that a government action conveys the message that religion or a particular religious belief is favored or preferred, the Establishment Clause has been violated.”