Have you ever had an issue that you thought you understood perfectly well, only to find out that what you thought you knew about it was totally wrong? It happened to me today regarding a Supreme Court case called Lamb's Chapel v Center Moriches School District. For several years I've thought that this case involved the Equal Access Act, a federal law that requires schools to not discriminate in allowing student-run clubs and organizations to use school facilities. This act has been credited with protecting the rights of students to organize bible clubs and prayer groups, and use school facilities just like any other student-led group can. More recently, however, it has also been used to protect the right of students to organize gay rights groups and the like. And rightfully so in both cases, I would argue.
But all this time, I thought the Equal Access Act also protected the right of groups in the community, not just student clubs, to use school facilities on equal footing with one another regardless of the content of the group or the purpose of the meeting. The Lamb's Chapel case involved a church that wanted to rent a public school auditorium to show a film series, after school hours. The school turned down that request, the church filed suit and the Supreme Court eventually ruled against the school district. The case was pretty much a slam dunk, with everyone from the ACLU to Concerned Women for America filing briefs on behalf of the church's right to use school facilities just as any other community group would be allowed to. The decision was 9-0, with a concurring opinion written by Justice Kennedy and a separate concurring opinion from Justices Scalia and Thomas. But it wasn't based on the Equal Access Act at all because, as I found out today, the EAA doesn't cover community groups at all, only student-led groups within the school. Rather, the case was decided strictly on first amendment free speech grounds. And decided rightly, in my opinion, just not on the basis that I have for years assumed it was decided. Just when you think you know it all....
As an aside, it's worth reading Justice Scalia's concurring opinion to see a great example of why he is so fascinating as a legal mind even to those who may disagree with him on many things. In sharp contrast to Justice Rehnquist, who prefers very narrow and technical decisions, and to Justice O'Connor, who is all over the board in terms of picking and choosing different justifications to get the result she prefers, Scalia is the frustrated curmudgeon in the back of the room pointing out the hypocrisies and contradictions of his colleagues. In lucid prose, he shreds pretenses and pretexts and demands consistent, bright lines. In this case, he is taking his colleagues to task for the gratuitous notation in the majority opinion of the Lemon test, wherein they note that allowing the church to use the school's facilities after hours would not reasonably be viewed as an endorsement of religion. While that is undoubtedly true, Scalia notes that it is also entirely superfluous to the case at hand, and he notes why that is:
The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Fenton, 473 U.S. 402 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
Scalia is certainly correct to point out that the court's establishment clause jurisprudence is a mess of contradictory reasonings and conclusions. I might not agree with how he himself would resolve those contradictions into a coherent body of law, but it's valuable to have him around to point out those inconsistencies and urge his colleagues to be consistent and clear in their pronouncements. Even when you disagree with him, you have to admire the incisive mind and wit of Justice Scalia. He certainly makes the court more interesting and more compelling by his presence.
Scalia is certainly correct to point out that the court's establishment clause jurisprudence is a mess of contradictory reasonings and conclusions.
One might hold out some hope that the reason the Court took Van Orden and McCreary was to announce a more coherent Establishment Clause doctrine. Unfortunately, I don't expect that to happen. And with this Court, I live in constant fear of the adage "Be careful what you ask for, because you just might get it."
Ed, on renting out school space, parks, and other government property, I recall a case where they were charging their favorite church, say, $1 a year, while others paid a more realistic amount. So after being taken to court, the rule is that everyone pays according to a consistant rate schedule. Sounds good to me.
Dan, it's not going to happen. These issues regarding the 10 Comm. monuments is too obscure. Why these cases are at the Supreme Court is a mystery. Apparently some law clerk decided that the Court had nothing better to do. (Clerks actually decide which cases are heard).
From what I hear, Scalia doesn't understand the source of the legitimacy of our government. To be interested in his nitpicking seems absurd.
Consider an analogous situation with a broken down car. You know how a car works and you know you have to fix it, once you've discovered what is wrong with this particular car. Beside you is somebody who dosn't know how a car works, but has plenty of bright things to say about what they see under the hood.
Is that your idea of a good time?
The idea that the government is divinely inspired is ridiculous. I do not find Scalia interesting as much as I find him tiresome and anti-republican as well as anti-democratic. This is a secular society, now let him get over it or create his own Catholic state somewhere else.