StrictSeparationist

Having read Sherman and then the excellent commentary in the original post, I have identified what I believe is the cardinal error in the case. Before I go into that, I'll just say that from my reading of the opinion, no challenge was made to the 1954 Congressional act. Thus, all the opinion's discussion goes only to the Illinois statute. Evaluating only the Illinois statute, I would say a Lemon analysis could go either way, as long as we're talking about an as-applied rather than a facial challenge. I myself would say the Illinois law probably flunks, but it's certainly no logical slam dunk as is the 1954 act. This, however, brings us to the most important flaw in the 7th Circuit's rather well-written opinion- its failure to conduct Lemon analysis at all.

So here goes my rant- the current state of Establishment Clause law is simply intolerable. I cannot comprehend the arrogance of lower courts which presume to apply Lemon only when they feel like it, simply because some Justices have expressed distaste for it. Quite simply, the test (with its endorsement or disapproval modification) is binding in all Establishment Clause cases in lower courts unless and until the Supreme Court says otherwise. Likewise, I cannot understand how the Supreme Court itself can be so negligent as to leave the unifying theory in a very controversial field of constitutional law in doubt for over a decade. The Lee Court's refusal to rely on Lemon was irresponsible and confusing, and since that 1992 decision the entire field of religion and government has been in a state of complete uncertainty and discord among the circuits. It is the Supreme Court's duty to either get behind Lemon or to squarely overrule it and substitute some other test.

I thus blame the 7th Circuit only in part for its refusal to apply Lemon. As it notes in its short discussion of the test, the Supreme Court has not been particularly helpful in recent years in understanding the status of that critical test. However, the Supreme Court takes liberties (such as applying its own cases selectively without actually overruling them) that the circuit courts are not allowed.

Returning for a moment to Newdow (sorry!): if the Justices actually decide to reach the merits, it might provide an appropriate vehicle for endorsing Lemon, and thus destroying two double standards (ceremonial deism and inconsistent application of Lemon) at once. And while they're at it, why don't they just overrule that most despised aberration, Marsh v. Chambers, too? *Sigh* I'm just indulging in a little daydreaming, don't mind me.

enfant terrible

Well, 7 of the 9 have been very consistent in their approach to EC cases. I am not sure I can say the same of Kennedy, but I think I am getting close to understanding his principles, and I'd say he is a strict separationist when coertion is involved (as in Lee), but not when it is about symbolic gestures with no direct impact on any individual (as in Allegheny). The unpredictable one is (not surprisingly) O'Connor, who is able to define a principle and defy it in the same opinion (Wallace). Of course, the other 7 are split 4-3 (3-4 betw. 1991 and 1993), so these two are pivotal, and what we get is a mess...

PS Thx for the compliment.

xorbie

Well it's taken me a good 35 min to read this thread, and that is with bare-bones skimming the middle portion, i.e. most of the debate. Personally, I think that the argument that a Creationist suffers from learning about evolution just like an athiest suffers from being forced to hear others say "under God" is vaild.

The creationist does not have to make public his views, but then would have to answer questions on tests that go directly contrary to his views. Sure his views are outlandish and silly, but that does not mean he is not constitutionally entitled to them. This kid hears students in class talk about evolution all day long and has to stand it, or if he speaks out will most likely be ridiculed by others.

I think the only argument that can be made here is that the PoA does not actually count as curriculum and so it teaches students nothing and should not be included. Quite frankly though, I do think it can be viewed as important and understand this argument. Hell, I think they should just take "under God" out of it and none of this would be a problem. However, assuming those 2 words ARE constitutional, I think that the athiest boy just has to sit and here them.

enfant terrible

This is not analogous to the "under God" case at all. Creationism is not a religious view. It claims to be science. But there is no such thing as constitutionally protected freedom to claim that any codswallop is science. While the state may not endorse one religious view over another - may not say something is good or bad religion - it has a perfectly constitutional power to endorse good science over bad science.