Law and Magic Blog

Religion Under Examination Conference, Independence, Ohio--September 25th

CFI Northeast Ohio is sponsoring a conference September 25th called Religion Under Examination. More here. Special guests include Robert M. Price, John Shook, and Ibn Warraq.

North Carolina Secular Association Billboard Defaced

From WSOCTV.com, a story about a secularist billboard which shows part of an American flag with the words, "One nation, indivisible." The North Carolina Secular Association and a local group put up the billboard on the Billy Graham Parkway (Charlotte, NC) (the Billy Graham Parkway? Oh, that's ironic). Sometime during the last weekend of June, someone defaced the billboard by adding "Under God". The NCSA has asked the police to investigate, and is replacing the billboard. It is also putting up additional billboards in other North Carolina cities such as Wilmington, Asheville, and Raleigh. The billboards are part of the association's "One Nation Indivisible" campaign.

CNN picked up the story here on its Beliefblog. I found some of the comments interesting, and some distressing or ignorant. What I think is even more ironic is the way in which the words on the billboard brought out someone's willingness to commit a crime because others want to express their freedom of speech. Christopher Grant writes about the meaning of graffiti here in an FBI document. Although he concerns himself primarily with graffiti, gangs, and urban violence, he does say this:

Public attitudes toward graffiti tend to fluctuate between indifference and intolerance. On a national level, the criminal justice system has yet to adopt a uniform response to graffiti
and the individuals who create this so-called street art. While some jurisdictions combat the problem aggressively, others do very little or nothing at all to punish offenders or to deter the spread of graffiti. To a large degree, society's inability to decide on a focused response to graffiti stems from the nature of the offense. It could be argued that graffiti falls into the  grey area between crime and public nuisance.

Other coverage here, where William Warren, head of Charlotte Atheists and Agnostic, the local group that co-sponsored the local billboard, notes someone would have needed at least a couple of ladders, extreme tallness (or is that tall-icity? no, no, I mean height) to reach the billboard. Maybe they used magic. But seriously now, Mr. Warren also reveals that nearly 60 new members have joined his organization, due to the news of the anonymous graffiti-ists. Ah, more irony.

 

 

Judge Tosses ICRGS Lawsuit Against Texas Education Board; No Creation Science Master's Degree

In 2008, the Texas Higher Education Coordinating Board refused to allow the Institute for Creation Research Graduate School to offer a master's degree in science education. The ICR then sued in federal court. Last Friday, a federal judge tossed the lawsuit.

Judge Sam Sparks wrote in part:

Based on the Board’s denial, ICRGS brought this lawsuit (which was removed to this Court in May 2009) against the members of the Board—Commissioner Paredes, Lyn Phillips, Joe  Hinton, Elaine Mendoza, Laurie Bricker, Whit Riter, Brenda Pejobich, and Robert Shepard (collectively, the “Board Member Defendants”)—under 42 U.S.C. § 1983 for infringement of its 1st and 14th Amendment rights to free speech, free exercise, equal protection, and due process, and against the Board Members and the Board itself under the Texas Constitution, the Texas Religious Freedom Restoration Act (“TRFRA”), and Chapter 106 of the Texas Civil Practices and Remedies Code (which prohibits discrimination)....ICRGS sues for declaratory and injunctive relief only. Both parties have filed motions for summary judgment and responses in opposition to the opposing party's motion. Because the motions deal with essentially the same issues, the Court will discuss them together.

...

[S]ubchapter G, on its face, gives the Board authority to regulate the granting of degrees by ICRGS, which undisputedly fits within the definition of a "private postsecondary educational institution" set forth in subchapter G....Well-established principles of statutory construction require the Court to presume "the entire statute is intended to be effective"; furthermore if a general provision conflicts with a more specific provision, "the provisions shall be construed, if possible so that effect is given to both."...

Keeping these principles in mind, the Court finds [sec] 1.001(a) does not limit the applicability of the Education Code only to institutions supported by state tax funds....

Having addressed this primary issue, the Court will proceed to address each of ICRGS's causes of action in turn, to the extent it is able to understand them. It appears that although the Court has twice required Plaintiff to re-plead and set forth a short and plain statement of the relief requested, Plaintiff is entirely unable to file a complaint which is not overly verbose, disjointed, incoherent, maundering, and full of irrelevant information.

...

First...ICRGS makes an as-applied challenge to the State's regulation of its issurance of degrees--and specifically, to the Board's decision to deny its application under those laws--basing all of its constitutional claims on an identical set of facts....

[T]he Court finds the Board's decision to deny a certificate...subject only to rational basis review, as the rules which governed the decision are neutral and generally applicable. Having so decided, the Court turns to the question of whether the Board's application of those rules to ICRGS was "rationally related to a legitimate state interest."

...

In subsequent paragraphs, the judge finds a legitimate interest on the part of the state in requiring certain standards of postsecondary institutions, among them regulating "the use of academic terminology in naming or otherwise designating educational institutions or their agents" and in maintaining and preserving academic records. This interest is tied to maintaining a certain level of competence and academic qualification by holders of various degrees granted by educational institutions in the state. The judge reviewed the reports submitted by the Board as well as memos submitted by Board members concerning the curriculum of the ICRGS. He noted that the negative recommendation of Commissioner Paredes included the following:

"[A]t least one of the texts which was to be used in the program set forth the principle that the earth is young, stating 'this is not a working hypothesis to be tested as to whether it is true or false[, but] a basic conclusion drawn from the biblical record of creation as written by the only One who was present, God himself.' Id. Commissioner Paredes state, '[w]hatever the ultimate merit of such views, they clearly stand at odds with the most basic tenants of scientific work such as observation, testing and analysis." Id.

[Note that the word should be "tenets", not "tenants".]

Says Judge Sparks,

Based on all the foregoing, it is clear the Board had at least one reasonable rationale for its decision to deny ICRGS's application; namely, that the proposed degree program does not adequately cover the breadth of knowledge of the discipline taught under Standard 12.

...

Of course, Defendants may still fail rational basis review if ICRGS is able to show Defendants rejected ICRGS's proposed program in order to punish its religious viewpoints, rather than out of rational concern about the academic merit of the program....However, ICRGS has set forth no actual evidence of any animus toward it....

Judge Sparks also discusses and dismisses the free speech and equal protection claims. ICRGS also makes a due process claim. Here it must show that it has a protected interest in offering the proposed program. But it has no entitlement to offer such a degree or program and can identify no protected interest. Nor can it show that the Board was arbitrary and capricious in asserting its power in denying the right to offer the degree.

The case is Institute for Creation Research Graduate School v. Texas Higher Education Coordinating Board, decided June 18, 2010.

 

A Decision In Maryland: Fortune Telling Speech Protected On First Amendment Grounds

Today, a decision in the Maryland fortune telling case, Nefedro v. Montgomery County. The Court of Appeals finds in favor of Mr. Nedfedro on First Amendment grounds. Here's an excerpt from the opinion.

We now address Nefedro’s First Amendment challenge to the Fortunetelling Ordinance. Nefedro argues that the Ordinance violates his right to freedom of speech as guaranteed by the First Amendment. For the foregoing reasons, we agree....There seems to be no dispute between the parties in this case that fortunetelling is speech. Instead, the issues before us are whether the Fortunetelling Ordinance regulates speech and, if so, whether that regulation violates the First Amendment. Nefedro argues that the Ordinance regulates speech and that, accordingly, the law must pass First Amendment scrutiny. The County responds that because the Ordinance regulates only the payment of money for fortunetelling services, it regulates only conduct. As a result, the County asserts the Ordinance does not implicate the First Amendment. In our view, the Fortunetelling Ordinance does regulate speech. A ... Assuming, as we do, that fortunetelling is speech, the question before us is whether the Fortunetelling Ordinance violates the First Amendment by improperly restricting that speech. The County argues that the Ordinance does not implicate the First Amendment at all because it prohibits not fortunetelling itself, but the receipt of remuneration for fortunetelling. This is not a meaningful distinction. The Supreme Court has held that a restriction on compensation for speech implicates the First Amendment. In United States v. National Treasury Employees Union, the Court found unconstitutional the application of a federal law that banned honoraria for federal employees.7 513 U.S. 454, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995). The Court explained that such an outright ban on remuneration for speech implicates the First Amendment even though it "neither prohibits any speech nor discriminates among speakers nor discriminates among speakers based on the content or viewpoint of their messages."...

[A] restriction on remuneration for protected speech is a restrictiona restriction on remuneration for protected speech is a restriction on the speaker’s First Amendment right to freedom of speech. The Fortunetelling Ordinance is such a restriction. By punishing protected speech when that speech is made in exchange for payment, the County is imposing a burden on that speech. Like the government employees in National Treasury, or the authors and publishers in the cases involving “Son of Sam” statutes, an individual who wishes to engage in protected speech for a profit will be discouraged from doing so because there is no promise of a financial benefit. This type of burden on speech is something the First Amendment generally forbids, especially when, as in this case, the burden is directed at speech specifically because of the content of that speech. The above notwithstanding, the County repeatedly asserts, and the dissent agrees, that fortunetelling is “inherently fraudulent” and, as a result, should not receive any First Amendment protection. Indeed, the First Amendment does not protect fraudulent statements.... We are not, however, persuaded that all fortunetelling is fraudulent. While we recognize that some fortunetellers may make fraudulent statements, just as some lawyers or journalists may, we see nothing in the record to suggest that fortunetelling always involves fraudulent statements. Indeed, fortunetellers, like magicians or horoscope writers, are able to provide entertainment to their customers or some other benefit that does not deceive those who receive their speech. Just as many other courts have concluded, we view this non-fraudulent speech as receiving protection under the First Amendment.... In response, the County and the dissent have cited a number of cases in which courts have referred to fortunetelling as fraudulent. We are unpersuaded by these cases. In most of them, the courts were not asked to consider whether fortunetelling was protected speech....In another case, there was no freedom of speech argument before the court and the fortunetelling remuneration ban at issue included an explicit exemption for fortunetelling performed “for the purpose of entertainment or amusement.” ...Yet another case, In re Bartha,134 Cal. Rptr. 39 (Ct. App. 1976), has been explicitly disavowed by that state’s supreme court....These cases do not affect our conclusion that some fortunetelling is simply not fraudulent....Accordingly, we conclude that the Fortunetelling Ordinance regulates speech that the First Amendment protects.

Hat tip to Ken Trombly. For more on the Nefedro case, see here for a Washington Post article and here for an article from the ABA Journal.

A Dissent In An Establishment Clause Case

In ACLU v. Grayson County, the Sixth Circuit has reversed a lower court decision determining that a "Foundations of Law and Goverment Display" at a local courthouse does not violate the Establishment Clause. Said the majority,

We first examine the purpose of the Foundations Display. Purpose is determined from the perspective of an objective observer. The "objective observer" is credited with knowledge of "readily discoverable fact," including "the traditional external signs that show up in the 'text, legislative history, and implementation of the statute' or comparable official act."... The evidence of purpose must be external; it cannot involve "any judicial psychoanalysis of a drafter's heart of hearts." ...

"Even if the text and official history of a statute express no secular purpose, the statute should be held to have an improper purpose only if it is beyond purview that endorsement of religion or a religious belief 'was and is the law's reason for existence.'" ... "Thus, a plaintiff must show that the predominate purpose for a challenged display is religious, although a totally secular purpose is not required." ...Indeed, if there is no manifest religious purpose for a display, an Establishment Clause complaint should fail, even if "savvy officials had disguised their religious intent so cleverly that the objective observer just missed it."

...

The Grayson County Foundations Display is identical to the third display in McCreary County and the display in Mercer County. Accordingly, much of the analysis of the purpose in those two decisions applies with equal force to our evaluation of this display. That said, we must be alert to distinguishing facts, as an objective assessment of the purpose behind identical displays may differ based on the different histories of the displays. ...One of the central concerns in McCreary County and Mercer County was the history behind the various displays. The Supreme Court examined the history of the third display in McCreary County and found that the clear history of a religious purpose--and the absence of any meaningful change in the intention evidenced by that history--demonstrated that the county had a predominantly religious purpose in approving the display. ...In Mercer County, there was no such evidence of a religious purpose heritage. ... Rather, this court found that "the only history the objective observer would incorporate into this display is the statement of Judge McGinnis that the purpose of the display is to recognize American legal traditions." As in Mercer County, the approval of the display in Grayson County was not attended by a history evidencing a predominantly religious purpose. There were no earlier displays nor were there any earlier resolutions indicating an avowedly religious purpose.

The other factors considered in Mercer County also highlight the absence of evidence of a religious purpose for the Grayson County display. Like the display in Mercer County, there was little official involvement in the display. It was proposed, funded, and hung by a private individual. The legitimacy of the County's claimed educational purpose is borne out by the very same explanatory document and other historical documents that supported the asserted secular purpose for the Mercer County display. The contents and context of the Grayson County Foundations Display are identical to the contents and context of the display in Mercer County, which were held to refute the challengers' assertion of a predominantly religious purpose.

The Plaintiffs in this case, who have the burden of demonstrating that the Foundations Display violates their rights under the Establishment Clause, have failed to present evidence sufficient to demonstrate that an objective observer could have concluded that the County's asserted secular purpose was a sham. In Mercer County, in the absence of proof of religious purpose, we deferred to the local government's stated secular purpose, concluding that an objective observer would view the Foundations Display not as an attempt to establish religion but as an acknowledgment of history. For the same reasons, we here defer to Grayson County's stated secular purpose and hold that the Fiscal Court in Grayson County has not been shown to have had a predominantly religious purpose in approving the Foundations Display.

...

Karen Nelson Moore, one of my favorite appellate judges, contributed a rather sharp dissent.

Government action violates the Establishment Clause if (1) "the government acts with the ostensible and predominant purpose of advancing religion," McCreary County v. ACLU, 545 U.S. 844, 860, 125 S. Ct. 2722, 162 L. Ed. 2d 729 (2005); (2) the action "has the purpose or effect of endorsing religion"; or (3) the action "foster[s] an excessive governmental entanglement with religion," ACLU v. Mercer County, 432 F.3d 624, 635 (6th Cir. 2005). Although the majority purports to apply this test, its application is misguided at best. Because I conclude that the record evidence in this case, viewed in the light most favorable to the defendant, establishes that the County had a predominantly religious purpose in hanging the Foundations Display ("Display") and that the Display had the purpose or effect of endorsing religion, I dissent.

...

"[P]urpose matters." McCreary County, 545 U.S. at 866 n.14. "The eyes that look to purpose" behind government action, "belong to an 'objective observer,'" id. at 862, a person who is "presumed to be aware of the text, legislative history, and implementation of the state action." ...Further, "although a legislature's stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective." If a defendant espouses a purpose in response to litigation, and such purpose contradicts the record evidence, the newly stated purpose may be rejected. See id. at 871 (rejecting the defendants' "new statements of purpose[, which] were presented only as a litigating position," because these statements contradicted the defendants' pre-litigation religious purpose); cf. Mercer County, 432 F.3d at 631-32 (noting that this court will not "defer to the government's stated purpose . . . 'where the claim was an apparent sham'"...

The County's asserted purpose here--that the Display was posted for educational or historical reasons--is a sham and should be rejected. The minutes from the September 18, 2001 Grayson County Fiscal Court ("Fiscal Court") meeting, which constitute the type of "legislative history" of which an objective observer would be aware, reveal the following: (1) Reverend Shartzer, a religious leader, approached the Fiscal Court and asked "the County to place the Ten Commandments in the County buildings"; (2) Reverend Shartzer stated that "the Civil Liberties [sic] would look more favorable [sic] toward [hanging the Ten Commandments] if they were hanging in a grouping with the other historical documents"; (3) "Judge Logsdon and the Court members expressed the desire to place them[, the Ten Commandments,] in the County buildings and asked the County Attorney if he thought they could do so in a way that would not cause problems for the County"; (4) Magistrate "Damon Hornback made a motion to place the Ten Commandments in the buildings," which "died for lack of a second"; and (5) immediately thereafter Magistrate Sandy Farris made another motion, which Damon Hornback seconded and which passed by a unanimous vote, that ordered "[t]he County place the Ten Commandments in the Court House along with the Historical documents." Record on Appeal ("ROA") at 417 (09/18/01 Meeting Minutes) (emphasis added). On September 28, 2001, the Fiscal Court reaffirmed the September 18 vote that had already approved the Display, ordering that "[t]he following resolution along with the Historical Documents and the Ten Commandments be placed in a grouping in the Court House." ROA at 419 (09/28/01 Meeting Minutes) (emphasis added). The vote at this second meeting followed an extensive commentary by Reverend Shartzer about the need for the Display, but the Fiscal Court failed to record the content of the exchange and there is little record evidence concerning what Reverend Shartzer said other than his recollection.

Although the Supreme Court has noted that the Ten Commandments have some historical value, see Mercer County, 432 F.3d at 634, an objective observer reviewing these minutes and their context in the light most favorable to the County would rightly conclude that the Fiscal Court's predominant purpose in erecting the Display was not secular. The evidence from these meetings clearly indicates that the predominant purpose was to post the Ten Commandments as a religious text and that the additional, "Historical Documents" were added merely to avoid violating the Constitution. Most notably, throughout the Fiscal Court's discussion of whether to erect a display, the Ten Commandments were always treated as separate from and more important than any of the "Historical Documents" mentioned. Reverend Shartzer, a religious leader, specifically asked the Fiscal Court to display the Ten Commandments. Magistrates Hornback and Farris, both government officials, singled out the Ten Commandments as their primary focus when making their respective motions to place the Display in the courthouse and clearly considered the "Historical Documents" as distinct from the Ten Commandments. Indeed, the actual orders that the Fiscal Court passed on September 18 and September 28 both focused on hanging the Ten Commandments and explicitly distinguished them from the "Historical Documents," which were mentioned in passing and only as a way to attempt to avoid constitutional problems.

In addition to treating the Ten Commandments and the "Historical Documents" as conceptually distinct, the Fiscal Court never mentioned at the first meeting when it voted to approve the Display that the Display would be educational or showcase America's legal history. To the contrary, in fact, the Fiscal Court continually  treated the Ten Commandments as separate from the "Historical Documents," indicating that the Fiscal Court did not attribute to the Ten Commandments whatever historical value those other documents held. Moreover, at no point after the Fiscal Court's first meeting's vote did the Fiscal Court pass a resolution stating or clarifying that the purpose of the Display was educational, historical, or otherwise secular. Instead, the Fiscal Court members began mentioning the secular aspects of the Display only after litigation commenced.

The majority insists that this evidence is insufficient for the plaintiffs to show that the County had a predominantly religious purpose in erecting the Display because "the simple desire to post the Ten Commandments cannot, in isolation, demonstrate religious purpose." Maj. Op. at 18. This observation ignores the way in which the Ten Commandments are viewed, particularly  by religious leaders such as Reverend Shartzer, and the explicit and vocal manner in which the Fiscal Court treated them. Regardless of any historical value attributable to the Ten Commandments, it is undeniable that the Ten Commandments comprise a religious document. See, e.g., Van Orden v. Perry, 545 U.S. 677, 690, 125 S. Ct. 2854, 162 L. Ed. 2d 607 (2005) (plurality) ("Of course, the Ten Commandments are religious--they were so viewed at their inception and so remain."). Given this reality, even though a government entity can post the Ten Commandments for educational or historical purposes and not run afoul of the Constitution, that does not mean that a desire to post the Ten Commandments in a constitutionally permissible manner cannot also evidence a predominantly religious purpose for the display in the eyes of an objective observer. When a government entity speaks only and continually about posting a religious document, treats the religious document as separate and distinct from the history-related documents, and focuses principally on ensuring that the religious document is posted in a way that does not upset "the Civil Liberties," an objective observer would rightly conclude that the predominant purpose behind hanging the religious document was to support and spread the religious message. Under such circumstances, the desire to post the religious document establishes the predominant purpose, even if the government entity never bluntly states that purpose as its rationale. As a result, I believe that the plaintiffs have met their burden to show an Establishment Clause violation: The predominant purpose at the time the Fiscal Court voted to approve the Display was a religious one.

...

 

I particularly like the sentence "Given this reality, even though a government entity can post the Ten Commandments for educational or historical purposes and not run afoul of the Constitution, that does not mean that a desire to post the Ten Commandments in a constitutionally permissible manner cannot also evidence a predominantly religious purpose for the display in the eyes of an objective observer." Translation: educational or historical purposes are not magic phrases that automatically hide predominantly religious purposes, when predominantly religious purposes come out continuously and continually to the forefront, and an objective observer can detect them.

 

I hope Judge Moore is on President Obama's list of potential replacements for Justice Stevens, should he step down. She's brilliant, she's even-handed, she's the model of a major legal intellect. She's my choice for a spot on the Court if one opens up. 

How Do We Know What We Know? And Do We Really Know What We Know?

Given the increasing shrillness of debates about religion in the public square and in the schools, and over what children should be taught about evolution in the public schools, last night's Nightline debate among several leading thinkers (including Deepak Chopra and Michael Shermer) on religion, philosophy, and science was of interest. Here's a link to the debate if you'd like to hear it again or if you'd like to hear it for the first time.

Colorado Man Loses First Amendment Challenge Over Cannibis Use

An Avon, Colorado, man lost his fight with prosecutors over whether the use of marijuana can be deemed protected under the First Amendment as necessary for religious observance. Trevor Douglas told a judge that he uses marijuana as a "religious sacrament." The prosecutor disagreed with Mr. Douglas' interpretation of the Biblical passages. Judge Rachel Olguin-Fresquez disagreed with both of them, ruling that what was at issue was the definition of "religion." She sentenced Mr. Douglas to a fine and community service for possession. Read more here.

Woman Challenges Virginia County Fortune Telling Law

Via Religion Clause, news that a spiritual counselor (her description) is suing Chesterfield County, Virginia over the section in its code prohibiting the practice of fortune telling unless one has a license to do so.

Sec. 6-1: Fortune-teller  means any person or establishment engaged in the occupation of occult sciences, including a fortune-teller, palmist, astrologist, numerologist, clairvoyant, craniologist, phrenologist, card reader, spiritual reader, tea leaf reader, prophet, psychic or advisor or who in any other manner claims or pretends to tell fortunes or claims or pretends to disclose mental faculties of individuals for any form of compensation. Nothing contained herein shall be construed to apply to a person pretending to act as a fortune-teller in a properly licensed theater as part of any show or exhibition presented therein or as a part of any play, exhibition, fair or show presented or offered in aide of any benevolent, charitable or educational purpose. 

Notice that this ordinance forbids fortunetelling "for pay" or for "any form of compensation" and provides no "ministerial exemption" although it provides an exemption for those engaged in entertainment ("pretending to act as a fortune-teller").

Sophie King says she provides "information that she receives without knowing how it relates to the individual client or its specific chronological significance."

Link to the filing here.

Ms. King moved to Chesterfield County from Los Angeles and says that she was not aware that she needed a license to practice in Virginia. But note that L.A. actually has an ordinance that regulates fortune telling. It's Section 43.30 of the Zoning Code. But currently, according to the municipal code,

"Section 43.30 of the Los Angeles Municipal code currently prohibits the advertising of possession of occult or psychic powers such as those that are involved in fortune telling, palm reading, numerology, prophecy, spiritual communication, etc... The Code further prevents a person from engaging in a business for which advertisement is prohibited. Does LADBS enforce this provision?

"In 1985 the State of California Supreme Court, in the case of Spiritual Psychic Sciences Church of Faith v. The City of Azusa declared a similar ordinance prohibiting fortune telling as unconstitutional. The City Attorney for the City of Los Angeles has advised that Section 43.30 should not be enforced. Consequently, business license requests and other permits for "fortune telling" and similar uses cannot be denied on grounds of Section 43.30. The use will be considered as an office for Zoning and Building Code enforcement purposes."

 

Law & Magic: A Collection of Essays Now Available

The book Law & Magic: A Collection of Essays made its debut at the AALS meeting in New Orleans. It's available at CAP's website (discount!) and also via amazon.com and bn.com.

Federal Judge Rules South Carolina's "I Believe" License Plate Unconstitutional

A federal judge has ruled that South Carolina's "I Believe" license plates are unconstitutional. The case, brought by four clergy and two groups against the head of the Department of Motor Vehicles and the head of the Department of Corrections, "presents a textbook example of the need for and continued vitality of the Establishment Clause of the First Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment."

Said the judge, "Despite such clearly established law, this state's limited resources have been used to promote, pass, and defend a state law, the "I Believe" Act, which authorizes the Department of Motor Vehicles ("the DMV") to issue a license plate which must contain "the words 'I Believe' and a cross superimposed on a stained glass window." S.C. Code Ann. § 56-3-10510. Such a law amounts to state endorsement  not only of religion in general, but of a specific sect in particular. As Justice Blackmun, speaking for the majority, explained in Allegheny:

Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion), . . . it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.

Contrary to the arguments of Defendant Marcia S. Adams ("Adams") and Attorney General Henry McMaster ("Attorney Gen. McMaster"), who appears as amicus curiae, the "I Believe" Act cannot be seen by any reasonable observer either as facilitating expression of a broad diversity of viewpoints (Adams' argument), or as a permissible accommodation to Christians (Attorney Gen. McMaster's argument). Both positions are belied by the facts that the "I Believe" Act (1) authorizes a single plate with a uniquely Christian message, (2) was sponsored and approved solely as the result of governmental action, and (3) presents its message in a manner that is not available except through the legislative approval process (necessary to allow the inclusion of both motto and symbol). The first of these facts precludes a finding of any "context" which would save it from unconstitutionality. ...The latter two facts preclude a finding that the plate is a mere accommodation because they distinguish the "I Believe" plate from any plate approved or available to private organizations through the non-legislative process. The "I Believe" Act had its genesis in Lieutenant Governor Andre Bauer's desire to do here what had been unsuccessful in the state of Florida--to gain legislative approval of a specialty plate promoting the majority religion: Christianity. Whether  [*5] motivated by sincerely held Christian beliefs or an effort to purchase political capital with religious coin, the result is the same. The statute is clearly unconstitutional and defense of its implementation has embroiled the state in unnecessary (and expensive) litigation. For the reasons summarized above and addressed in more detail below, the court: (1) grants Plaintiffs' motion for summary judgment as to the claims for declaratory and injunctive relief asserted against Defendants Adams and Ozmint in their official capacities; but (2) finds that qualified immunity bars the claim for damages asserted against Adams in her individual capacity.

 

Read the entire decision here.