The founding generation said that government is not a competent judge of religious truth, and for half a century now, the Supreme Court has applied that principle to government speech. Government is not supposed to take positions, pro or con, on truth claims about religion. Government must resist its recurring temptation to proclaim that Christianity is true. This rule has always encountered vigorous resistance in some parts of the country and vigorous dissent on the Court. There may be five votes to overrule the whole line of cases restricting passive religious displays. But Justices do not always resort to overruling; they have other ways of dealing with their least favorite cases. They may restrict or eliminate standing. Or they may simply manipulate the findings of fact so that they never find the rule to have been violated. 

This paper examines recent developments in the strategy of manipulating or recharacterizing the facts. In a sense, this paper is an exercise in belaboring the obvious. When Justices and government lawyers defend government-sponsored religious displays by claiming that the display is really secular, the argument is often rather conclusory. But the response is often even more conclusory. “Just look at it. See! It’s religious.” I will spell out in more detail why these messages can only be understood as religious, and then address the Court’s latest theory for avoiding that obvious conclusion.

Douglas Laycock, Government Sponsored Religious Displays: Transparent Rationalizations and Expedient Post Modernism, 61 Case Western Reserve Law Review, 1211–1252 (2011).
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