There's much to Marty's post, but let me probe this: Why is
endorsement "of the idea that 'Jesus died for you on the cross' is
within the range of speech that is relevant and appropriate for a
graduation ceremony" -- even if that's not an endorsement of the truth
of the matter -- a violation of the Establishment Clause? (Let's set
aside the related but not identical question of whether restricting such
speech would be permissible even if the speech doesn't violate the
Establishment Clause.)
Wouldn't that be quite a substantial extension of the
endorsement test, and a rather dangerous one? Consider religious speech
that the government is allowed to include in many contexts -- religious
paintings in government-run museums, musically significant religious
songs as part of a choral repertoire in a government-run school,
students' choices of religiously themed presentations in high school or
college classes where the instructor gives students to choose their own
topic (religious or not) from a wide range of topics. I take it that
this is permitted precisely that there's no "endorsement of the truth of
the matter," and without such endorsement, the government's inclusion of
the speech isn't treated as an unconstitutional endorsement.
Yet in each instance, one can say that the government's
inclusion or toleration of the religious message is "endorsement of the
idea that [include the relevant religious message here] is within the
range of speech that is relevant and appropriate for a [museum / choral
program / classroom presentation]." After all, I suspect that in many
such programs, the government would exclude some messages as
inappropriate; a program featuring community artists may well exclude
the community's KKK members' art on the theme of "why blacks are
inferior." Yet I take it that we'd think the program may still include
a religious member's variation on the Madonna and Child, or for that
matter on Christ dying on the cross, if the government actors running
the program think the work is well-executed.
Am I mistaken? Is there a robust distinction between these
scenarios that would explain why the government's allowing the religious
speech as part of the valedictorian's choice is an Establishment Clause
violation, and the government's allowing the religious speech in the art
exhibition is not, despite its endorsement of the idea that such speech
is appropriate in a community art exhibition? Or is it that the
government must exclude religious speech even from the other contexts?
Eugene
Marty Lederman writes:
In other words, this isn't like Speaker's Corner, or some other
public forum, and never will be. Thus, there's no getting over the
problem of endorsement. If a school would forbid the speaker from
leading cheers for the re-election of the President, or for the
electoral prospects of Hillary Clinton, or would ask a student to
apologize for condemning persons of a particular religion, but would
permit the speaker to say that "Jesus died for you on the cross," there
is at least a modest sense of endorsement: Not endorsement of the truth
of the matter, mind you, but endorsement of the idea that "Jesus died
for you on the cross" is within the range of speech that is relevant and
appropriate for a graduation ceremony. My personal view is that if the
school did accept such a statement as appropriate -- or, e.g., accepted
as appropriate the statement "Jesus is a scam" or "women have a
religious duty to stay at home" or [you can fill in the blanks with your
favorite hypo] -- it would be an Establishment Clause violation, albeit
not the most important one of all time. My quick 'n' easy rule of thumb
is that specifically religious speech can be treated no better than
political speech, or else there's a possible Establishment Clause
problem. And if it's treated no worse than such political speech,
there's certainly no Free Speech problem.
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