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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Le High County

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Speaker 1: in Pennsylvania adopted its seal seventy five years ago. The

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Speaker 1: seal features across in the center, surrounded by nearly a

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Speaker 1: dozen secular symbols like a heart of farm and factory,

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Speaker 1: and in the first test of the Supreme Court's most

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Speaker 1: recent decision on the display of religious symbols, the Third

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Speaker 1: Circuit Court of Appeals has ruled the seal does not

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Speaker 1: violate the Constitution's prohibition against government endorsement of religion. Joining

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Speaker 1: me as an expert on the First Amendment, Rick Garnett,

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Speaker 1: a professor at Notre Dame Law School, Rick, will you

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Speaker 1: explain the Third Circuits reasoning here? Yeah? Sure, Although you

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Speaker 1: you did a great job in your setup. Significant significant

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Speaker 1: here is that this is an early indication of how

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Speaker 1: federal courts of appeals are going to interpret and apply

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Speaker 1: the Supreme Court's latest decisions having to do with religious

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Speaker 1: symbols and religious expression in the public square. UM. For years,

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Speaker 1: there's been UM some confusion and perhaps contradictory results in

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Speaker 1: the lower court opinions, mainly because the Supreme Court itself

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Speaker 1: couldn't seem to decide on how these religious symbol cases

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Speaker 1: should be handled, and so they tended to UM come

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Speaker 1: out in various unpredictable ways, uh, depending on a whole

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Speaker 1: lot of factors, and what some people were hoping was

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Speaker 1: going to happen after the Supreme Court's most recent decision

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Speaker 1: appears to be happening, namely that UM, the Court here

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Speaker 1: had a pretty clear approach and said, look, the establishment

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Speaker 1: clause doctrine that the Court created for dealing with things

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Speaker 1: like school prayer or UH financial aid to schools, that

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Speaker 1: doctrine simply does not apply to cases involving long standing

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Speaker 1: public seals, you know, the names of towns and so on.

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Speaker 1: It was always going to be the case that the

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Speaker 1: Supreme Court was never gonna make San Francisco or Sacramento

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Speaker 1: change their names. But they didn't really have it. They

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Speaker 1: didn't really have doctrine that would explain why that was

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Speaker 1: the case. And I think now we do. I think

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Speaker 1: the third Circuit has shown us that in these cases

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Speaker 1: involving First Amendment challenges to these passive, longstanding symbols, the

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Speaker 1: fact that they have religious content does not make them

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Speaker 1: an establishment of religion. So is there a presumption of

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Speaker 1: constitutionality for long standing monuments? Yeah, exactly, that's the term

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Speaker 1: that the Court uses again following the Supreme Court. It's

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Speaker 1: not an absolute rule, but the Court was pretty strong

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Speaker 1: I think in saying that there's the presumption is going

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Speaker 1: to be a strong one. If there's been a symbol

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Speaker 1: there was adopted a long time ago, even if it

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Speaker 1: includes some religious imagery, Um, if it's existed for a

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Speaker 1: long time, if it's purpose and meaning has evolved over time,

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Speaker 1: so long as it's not discriminatory in its intent or

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Speaker 1: disparaging of of a particular religious denomination, the Court says,

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Speaker 1: it's going to be very difficult to overcome the presumption.

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Speaker 1: So that this ruling, if it's followed, um, it should

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Speaker 1: be pretty effective in helping courts sort of get out

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Speaker 1: of the business of explaining again why Las Cruces, New

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Speaker 1: Mexico doesn't have to change its name. So now, what

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Speaker 1: about is the next test going to be about monuments

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Speaker 1: that are not long standing. Yeah, so that's that's it's

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Speaker 1: a great point. I mean, as you might recall a

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Speaker 1: couple of years ago, the last time the court was

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Speaker 1: really dealing with symbol that involved the Ten Commandments, and

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Speaker 1: you had the court hand down two decisions on the

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Speaker 1: same day. One of them involved having an old Ten

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Speaker 1: Commandments display that had been up for decades in Texas,

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Speaker 1: and the other one was a relatively new one that

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Speaker 1: had been put up in a courthouse in Kentucky. And

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Speaker 1: the court came out differently on the two displays, basically

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Speaker 1: said the the old one could stay, but the new

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Speaker 1: one was problematic. So it does remain to be seen.

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Speaker 1: I think, um, kind of how old is old enough?

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Speaker 1: How old does a symbol or a seal or a

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Speaker 1: place name need to be in order to get this

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Speaker 1: presumption of constitutionality. My sense is that, Um, if he

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Speaker 1: had a if some town were to adopt a new

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Speaker 1: seal next week, or to put up, you know, to

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Speaker 1: change its name to one that had a religious connotation,

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Speaker 1: or to engage in some other kind of religious symbolism,

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Speaker 1: h people challenging it would say, well, if you look

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Speaker 1: at the history of why the town is doing it,

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Speaker 1: the intent really is to make a religious um statement,

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Speaker 1: and perhaps that discriminatory woul with a statement that would

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Speaker 1: be the way to overcome the presumption. So Rick, as

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Speaker 1: you mentioned, the Court has sort of struggled to lay

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Speaker 1: out clear rules governing religious symbols on public lands. And

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Speaker 1: even this latest ruling, though there were seven justices who

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Speaker 1: agreed with with the main opinion, the seven of the

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Speaker 1: nine I'm sorry, seven of the nine wrote an opinion

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Speaker 1: in the case explaining themselves. So does that show that

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Speaker 1: it's going to be tough to come to a decision

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Speaker 1: about monuments that are newer? Well, a lot of us

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Speaker 1: court watchers were wondering that, and probably many of us

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Speaker 1: still are, because, as you say that, you have to

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Speaker 1: kind of piece together different justices opinions to sort of

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Speaker 1: identify um the rule, and in this case, the Third

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Speaker 1: Circuit I think show pretty clearly how that can be done,

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Speaker 1: and I suspect other courts will follow the example. That is,

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Speaker 1: if you put together the opinions of the justices who

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Speaker 1: were among the seven and including, you can identify opinions

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Speaker 1: that were signed onto by five justices. Um. It does

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Speaker 1: appear that the so called Lemon test is simply not

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Speaker 1: going to apply to these symbols and displays cases anymore.

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Speaker 1: We want to get more data points and see more

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Speaker 1: courts weighing in. But I I feel pretty confident that

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Speaker 1: other courts are going to find the third circuits reading

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Speaker 1: of those opinions the right one. Will you explain the

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Speaker 1: Lemon test for those of us who are, oh, of course,

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Speaker 1: sorry about that. Yeah, the Lemon. Lemon is a case

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Speaker 1: that was decided nearly fifty years ago, um, and it

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Speaker 1: had three parts to it. And so this is what

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Speaker 1: law students always had to learn and you know, regurgitate

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Speaker 1: on the bar exam. But the idea was that, um,

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Speaker 1: the First Amendments rule against establishments of religion. Um, if

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Speaker 1: in order to be an establishment, a policy needed to

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Speaker 1: either lack of secular purpose. That was the first part. Uh. Second,

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Speaker 1: if it advanced religion in some way, it would violate

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Speaker 1: the establishment clause. And then third there was a concern

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Speaker 1: that if a policy led to what the court called

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Speaker 1: excessive entanglement between government and religion, that would be Establishment

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Speaker 1: clause violation. And so this Lemon case kind of became

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Speaker 1: you know, the control alto doctrine that courts would use.

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Speaker 1: But The problem is it wasn't very well suited too

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Speaker 1: public actions like displays. How does one decide, you know,

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Speaker 1: if a display has the effect of advancing religions. So

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Speaker 1: in the eighties the court refined the Lemon test a

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Speaker 1: little bit and said, well, we're gonna ad at a

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Speaker 1: new inquire. We're gonna ask whether a particular symbol endorses religion.

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Speaker 1: But that proved over the following decades to not be

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Speaker 1: very helpful either, because endorsement was often in the eye

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Speaker 1: that beholder. Um. People react to symbols in very different ways.

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Speaker 1: So I think in more recent years, rather than asking

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Speaker 1: that kind of a distract question about endorsement, the Court

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Speaker 1: had started leaning war on history, tradition, and practice. Thank

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Speaker 1: you so much, Rick, We have to leave it there,

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Speaker 1: but we could talk about this for so long. Thanks.

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Speaker 1: That's Rick Garnett. He's a professor at Notre Dame Law School.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg