ACLU v. Schundler
I finally had a chance to read over the Schundler case that everyone is talking about, and I don’t see what the big deal is in terms of following the recently established precedent (which is really based on only two cases). Long story short, Alito basically seemed to echo O’Connor’s endorsement test – which I always considered to be the de facto majority rule on the Court’s splintered (and still chaotic) establishment clause analyses - given that she was the decisive vote on both the Lynch and Allegheny cases.
Am I missing something here? I read it like this: In the Lynch case, the display at issue was a Santa Claus house, reindeer, candy-striped poles, various other Christmas season-type figures, and a crèche, which was found permissible (5-4 with O’Connor) because the religious crèche was neutralized by secular figurines.
In the two displays in Allegheny, the crèche (standing virtually alone) was ruled a violation of the establishment clause (5-4 with O’Connor) because it was alone, but a menorah with a Christmas tree, was found permissible (6-3 with O’Connor and Blackmun) because the tree neutralized the religious menorah.
Reading the facts in the Schundler case, the display at issue was a creche, menorah, kwanzaa symbols, a Christmas tree, and Santa Claus and Frosty the Snowman figures, which the court found permissible. In very deliberate statements, the Schundler case clearly points to O’Connor’s analysis as the driving precedent, but without noting her “endorsement of religion test.”
Let me point out that, personally, I tend to agree more with the Brennan and Marshall dissent in Lynch, but the O’Connor test I feel is a better test anal
ytically than the messy Lemon-test, and in my opinion preferable (philosophically) to the (less stringent of government establishment) coercion test which – if memory serves me – was actually devised by “moderate” Kennedy and supported by Rehnquist.
In reading Schundler, I also did note that the Alito court didn’t emphatically come out to specifically support the endorsement test over the coercion test, which I imagine gives him flexibility in establishment clause cases to either 1) stay with O’Connor’s endorsement-test; 2) side with Kennedy and the coercion-test; or 3) go all the way over to the Scalia/Thomas wing.
This is the kind of silence that I imagine keeps hardcore first amendment civil libertarians awake at night.
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