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Tricky Rules of Religious Displays on Public Property

The following is a transcript of "The Legal Lad's Quick and Dirty Tips for a More Lawful Life," a podcast from QuickAndDirtyTips.com. The audio program is available via RSS feed here and at TheStreet.com's podcast home page.

Hello, and welcome to Legal Lad's Quick and Dirty Tips for a More Lawful Life.

But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Today's episode is on the challenges brought under the Establishment Clause of the Constitution to religious displays on public property. In this episode, I will discuss the basic principles, and in the second episode, I will discuss how these principles apply to government holiday displays.

The First Amendment to the United States Constitution provides in relevant part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ...

The first part of the First Amendment is known as the Establishment Clause, the history of which is a little muddy. The First Amendment, and the entire Bill of Rights, was passed in 1789, following the Revolutionary War. We had just won our independence from the United Kingdom, a country that had, and still maintains, the Anglican Church as a state religion.

Some scholars argue that the First Amendment was only passed as a means to prevent Congress from creating one national religion, and that the States could still create State religions in their discretion. Indeed, at the time the First Amendment was passed, several states actually had official religions. These scholars further urge that the Establishment Clause was intended to prohibit Congress from preferring religion over irreligion.

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