"Lawyer (n): one skilled in circumventing the law". -- Ambrose Bierce

Anonymous, who claims to be an attorney who practices Constitutional law (and I believe him), defends the judge's ruling on the Rhode Island prayer mural case:

... the case law, which is an interpretation of the Constitution... holds that endorsement of religion is a violation of the Constitution.

No it doesn't.

The test applied from case law is the Lemon Test, from Lemon v. Kurtzman. The relevant part of the Lemon test is the second prong, which reads:

2) The government's action must not have the primary effect of either advancing or inhibiting religion;

The test of a government action is "the primary effect of advancing" religion, not endorsing it. An endorsement that does not advance religion is not, according to the Lemon Test, unconstitutional. Even if a government does advance religion, it is only unconstitutional if it's primary effect is the advancement of religion.

So by the second prong of the Lemon Test the prayer mural would only be unconstitutional if it advanced religion as its primary effect. Obviously, the mural does not in any meaningful sense advance religion (it does not compel or advertise religious observance or assent), and religion is its secondary effect anyway. Only six of its eighty words say anything about religion. The other seventy-six words encourage students to be good citizens. It is primarily an exhortation to good citizenship. 

By the plain language of the Lemon Test, the prayer mural is constitutional.

On the other hand, Judge Lagueux's opinion can also be analyzed using the Lemon Test. Judge Laugueux 's opinion meets three criteria:

1) It is a government action (a federal court ruling).

2) It inhibits religion (it explicitly censors a prayer mural because it contains religious language).

3) The inhibition of religion is the primary effect of the ruling. It's the whole point of the ruling. 

Thus, by the Lemon Test, Judge Laugueux's ruling is unconstitutional.


Justice Scalia has noted that for the Lemon Test to be applied at all it must be applied inconsistently and incoherently. He cites the example of the application of the Lemon Test to the First Amendment:

The Free Exercise clause singles out religion for place of privilege in our First Amendment rights, prior to the right to freedom of speech, freedom of the press, and freedom of assembly.

By doing so, the Free Exercise clause explicitly advances religion. So the Lemon Test's criterion for the compliance of a government act with the First Amendment is violated by... the Free Exercise clause of the First Amendment.

Justice Scalia points out that by the Lemon Test, the First Amendment violates the First Amendment.


Constitutional lawyer Anonymous:

And since the incorporation doctrine holds that the rights enumerated in the Constitution apply not just to the states, but to their instrumentalities, like a school, the actions of the school to endorse a religion are prohibited.

No.

The Establishment clause cannot, by logic, be subject to incorporation by the Fourteenth Amendment.

From Nebraska Law Professor Robert Duncan:

Justice Thomas [has] observed that the best scholarship on the original  understanding of the Establishment Clause supports the conclusion that it is “best understood as a federalism provision—[which] protects state establishments from federal interference..."

Thus, incorporation of the Establishment Clause against the states is incoherent, because it “prohibit[s] precisely what the Establishment Clause was intended to protect—state establishments of religion.” In other words, incorporation of the Establishment Clause has perverted the purpose of the Clause, because as Justice Stewart once said: “a constitutional provision . . . designed to leave the States free to go their own way . . . [has] become a restriction upon their autonomy.”

The purpose of the Establishment clause was to preclude incorporation of federal religious constraints-- such as would eminate from an established national church-- on the states. Therefore, the Establishment clause is not subject to incorporation by the Fourteenth Amendment, because its overt purpose is to prohibit incorporation.



Lawyers like Anonymous who hawk state censorship of religious expression aren't invoking genuine legal scholarship. They are merely applying their skills, as Ambrose Bierce quipped, to the circumvention of the law. They misrepresent the law to make a cudgel to extinguish civic religious expression. Sophistry, not scholarship, is their method.

We ordinary citizens-- We the People-- and honest legal scholars and jurists who respect the Constitution, need to call these dissembling bigots out.