Lynn v. Sekulow

Barry, we should not expand federal or state reporting requirements for churches that support or oppose legislation/ initiatives, just as we should not continue the gag rule on political speech from the pulpit.


On a different note, you’ve probably heard about the controversy in Olympia, Washington surrounding a sign from the Freedom From Religion Foundation displayed near the Capitol Rotunda. Among other things, the sign says, “Religion is but myth and superstition that hardens hearts and enslaves minds.” It was placed in response to the inclusion of a nativity scene last year. Many people in Washington and around the country are upset by this message, and other groups and individuals have had signs displayed there as well this month in response.


Barry, I think you would agree that this situation highlights the important difference between private speech in a forum and government speech that was raised in our Pleasant Grove v. Summum case before the Supreme Court. As our letter on holiday displays explains, where the government makes a location available for the expression of private speech during the holiday season, as it appears is the case in Olympia, the government cannot exclude potential speakers due to disagreement with their viewpoint. Religious or anti-religious private speech in a forum cannot be attributed to the government, so there is no Establishment Clause issue in allowing a nativity scene, menorah, or atheist sign on equal terms. The government may post a general disclaimer stating that it does not endorse the message of the private displays, but it cannot single out religious displays for a special disclaimer.


On the other hand, when the government itself is speaking, as we argued is the case in Pleasant Grove, private individuals cannot force the government to change the desired message. Governments often convey their own messages during the holiday season through government-owned displays that include a variety of secular and religious items. When a person challenges such displays under the Establishment Clause (which was not the case in Pleasant Grove), and has proper legal standing to do so, the court considers whether the purpose and effect of the government’s display is primarily secular or religious in nature. Thus, courts consider the context of government-owned holiday displays that include a nativity scene or menorah, e.g., whether there are items such as reindeer, Santa Claus, candy canes, etc. nearby, in determining whether the display is permissible.


Barry, do you agree with this analysis?


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