Menorahs in Basalt pass legal test
December 4, 2018
Mark Kwiecienski complains about menorahs in public parks in Basalt ("Menorahs don't belong on public land," Dec. 4, The Aspen Times). He says such religious displays violate the prohibition on "separation of church and state" and the establishment clause of the U.S. Constitution. Kwiecienski is wrong on the facts and law, and his allusions to vandalism are troubling.
The U.S. Supreme Court has addressed religious expressions in public places, on public land and at government meetings multiple times. And, they have continued to rule, though not always consistently, that religious symbols, prayers and other exhibitions of religious belief or celebration are permitted to some extent in the "public square."
In Salzar v. Buono, the court held that the Constitution does not require the removal of religious symbols from public land. That case involved a cross honoring war dead placed in 1934 in the Mojave Desert on public land. Justice Anthony Kennedy wrote in Salazar that "the Constitution does not oblige government to avoid any public acknowledgment of religion's role in society."
Religious symbols on public property (temporary or otherwise), particularly those placed by private groups, are thus permitted. In Lemon v. Kurtzman (1971) the Supreme Court (famous "Lemon test") was clear that a "religious practice or symbol will survive an establishment clause challenge when it has a secular purpose, has a primary effect that neither advances nor inhibits religion, and does not foster excessive state entanglement with religion." Justice Sandra Day O'Connor in 1983 created an additional test: Does the state subjectively intend to promote religion through its actions, and would the reasonable observer interpret the actions of the state as an endorsement of religion? (Lynch V. Donnelly).
One need look no further than the Ten Commandment edifices at the Aspen or Grand Junction city halls, in "God we Trust" in courtrooms, Christmas trees in government buildings, etc., to see this is permitted. In fact, prohibiting a group from putting up a menorah in a public park could violate the First Amendment's prohibition on free expression. In addition, these symbols do not endorse a particular religion.
Recently, the Supreme Court, in town of Greece, N.Y. v. Galloway (2014) addressed a religious prayer opening a town council meeting. The court held that the prayer did not violate the First Amendment, did not have to be "nonsectarian" to comply with the establishment clause, and that an opening prayer did not compel the town's citizens to engage in a religious observation thus passing the Lemon test.
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Thus the law, while somewhat in flux, appears clear that a menorah at a public park placed there by a third party would does not violate the establishment clause; i.e. separation of church and state.
Anthony F. Hershey