Garrett Bell – Should a Nativity scene be treated differently than a menorah?

A dispute over holiday displays at the Connecticut Capitol is raising new questions about religious expression on public property.

Garrett Bell, Associate Counsel at First Liberty Institute, joins the show to discuss the legal challenge over the state's display policy and what it could mean for First Amendment rights. 

Transcript

SPEAKER_01 0:03

Hey, welcome back to the Lars Larson show on First Amendment Friday. Glad to get to your calls in a moment at 866-HLars. That's 866-439-5277. Send your emails to talk at LarsLarson.com. So imagine this at the Connecticut State Capitol, Menors made the cut, but a nativities team got turned away because it was said to be too religious. I thought we'd talk to Garrett Bell about that. Associate Counsel, he's a lawyer at First Liberty Institute. Garrett, welcome back to the program. So tell me this. How did all this come about and why are they picking and choosing religious winners and losers in Connecticut?

SPEAKER_02 0:45

Yeah, you set it up pretty well. I mean, uh Family Institute of Connecticut, they're a nonprofit advocacy organization that aims to promote religious liberty and pro family values there in Hartford. And yeah, last Christmas, FIC submitted an application to the Joint Committee on Legislative Management for permission to display a small nativity on a table in the State Capitol building.

SPEAKER_01 1:07

Yep.

SPEAKER_02 1:08

And yeah, they had observed other displays from other organizations in that same area. So they wanted to include this display that celebrated the season and reflected the faith and traditions of many Connecticut residents. And yet the committee denied the application, stating that the Timby scene was religious in nature, and informing them the committee's policy forbid religious displays in the public spaces.

SPEAKER_01 1:33

Can a government do that under the First Amendment?

SPEAKER_02 1:37

Absolutely not.

SPEAKER_01 1:38

Yeah.

SPEAKER_02 1:39

And the the irony of what's going on here, as you pointed out, is there's menuras that we know about that were displayed in these same areas. Now we have some information to believe that those menuras were actually put out by the government themselves. Whoa. And here in this case, which is totally fine, by the way, completely fine. Well, I don't know. Hold on.

SPEAKER_01 2:02

Does that step across the establishment language of the First Amendment? If the government says we're putting the menorahs out, so we're going to promote one particular religion. That doesn't sound like it would pass mustard, does it?

SPEAKER_02 2:15

Actually, governments are uh completely okay to put out uh religious displays or displays that have religious text or uh iconography on them on government property. In fact, um recently you'll see a lot of municipalities, local governments, state governments that are displaying the uh Ten Commandments, whether in a courthouse or on their government property. Um but the interesting thing here is that this isn't that. Uh the FIC is a private organization. Uh, and the establishment clause really doesn't come into play when we're dealing with a private display uh where it is being displayed in a what's called a public forum. Um and so the state's position is sort of interesting in that they are saying, well, when we put a menorah up, that doesn't violate the establishment clause. But somehow, when a private citizen wants to put up their own display, that would violate the establishment clause.

SPEAKER_01 3:11

What is their logic for why that steps across the line?

SPEAKER_02 3:16

I'm afraid there's not much logic to it. Uh uh to put it bluntly. And I think that what we're dealing with here is like for so long, we were operating under what was called the Lemon test that was established in Lemon v. Kurtzman. That was a precedent from the 1980s, the Supreme Court. And essentially that test looked into well, does it appear that the government is endorsing some kind of religion, generally or specific denomination specifically? And um the the practical effects of that test were to strip anything religious from the public square whatsoever. And thank goodness, this uh most recent Supreme Court bench uh in a case that First Liberty actually litigated uh called Kennedy B. Bremerton is about a oh I know I know Coach Joe.

SPEAKER_01 4:10

Joe Kenneth.

SPEAKER_02 4:11

That's right. Yeah, that's right. And that case affirmatively said, look, the lemon test has been dead for years. We believe it's been dead for years, but in the event that you still don't get that, we are now abrogating lemon. The lemon test is no longer applicable. And instead, the establishment clause should be interpreted in a way that matches with its original meaning, um, and uh sort of this historical test, what was permitted at the founding. And I mean, you can go to you can go to DC, you can go to multiple state capitals, you can look in state constitutions. It's very clear that just the mention of religion was not enough to violate the establishment clause. Instead, the establishment clause was meant to prevent coercion, uh, forcing people to go to a certain church, say a certain prayer, forcing people not to say a certain prayer, you know, compelling someone to act or say something against their beliefs. Um, in in here, in our case, that's just not at all implicated. I mean, this is private citizens who want to put up a display just like other private citizens have put up other displays. So now you've opened up a forum, you cannot target religious content or viewpoints for exclusion.

SPEAKER_01 5:29

That sounds uh perfectly reasonable. Garrett, thanks so much for the work you do at First Liberty Institute. Glad to be with you on a First Amendment Friday. Uh, let me go to Pat. Hey Pat, welcome to the program. Everything's fair game. What's on your mind?

SPEAKER_04 5:44

Good afternoon, Lars. Great to talk to you um with our president's speech, and you brought it up. It just brought my memory back to the 2020 election when uh Giuliani stood up on the podium and had like a I think eleven hundred affidavits signed by people that either witnessed or participated in illegal actions at the at the uh um county um locations. Do you remember whatever happened to those?

SPEAKER_01 6:08

I don't. I I don't recall what happened to those affidavits. All I know is in the last six years, we have found out so much more about what happened in 2020, and we know that that it was flawed. And the Democrats denying it was flawed doesn't do anybody any good, does it?

SPEAKER_04 6:25

That's that's correct. That's correct. Mike has thought of that, and you know, he never heard about it since then and and didn't hope any of your uh listeners who have a great audience that might remember, but uh again, I've never heard of them being brought up again since then.

SPEAKER_01 6:38

No, and I haven't either, and I don't know the outcome of that. I'll see if I can find out. Let's go to Paul in Idaho listening on KIDO. Paul, what's on your mind on First Amendment Friday?

SPEAKER_03 6:48

First amendment and uh Yeah. Debate, basically, today went on last night. I mean they went ahead and shut him down. And uh I don't agree with that. I think you have to show them respect to that for the president of the United States.

SPEAKER_01 7:13

I think they were out of line to do that. Uh thank you very much. Lonnie in California, what's on your mind? We're gonna have to get to it quick. We're coming up to the top of the air.

SPEAKER_00 7:24

How do you know that they're marked by the post office? Anybody can, because it's just a stamp, anybody can make that stamp. Is there any way to prove that the post office stamped them?

SPEAKER_01 7:34

I I don't know that there is. And in fact, a lot of people have raised the question that in states where they use it's called RBM, I think it's return ballot mail. It's usually used for businesses that once you'd be able to mail something back, uh, then in those cases, they may or may not be actually postmarked on the day that the post office actually picked them up. So it becomes a bit of a problem to try to determine exactly when was that ballot dropped into the mailbox and was it marked appropriately? This is why we need to pass the SAVE Act. Number one, picture ID for all voters. Number two, prove from every voter that you are an American citizen. Number three, your ballot has to be in by election day. And number four, if you sign somebody up to vote who's not a citizen, there are criminal penalties for doing that. It's First Amendment Friday, and you've got the Lars Larson show.