Query re creches on govt prop

[Rob Weinberg]

At 01:24 PM 12/10/97 -0500, Robert O'Brien wrote:

>I have not review the other cases, but in regard to _Allegheny County_ it
>seems to me that Laycock is right:
>
>"The fact that the creche bears a sign disclosing its ownership by a Roman
>Catholic organization does not alter this conclusion.  On the contrary, the
>sign simply demonstrates that the government is endorsing the religious
>message of that organization, rather than communicating a message of its
>own.  But the Establishment Clause does not limit only the religious
>content of the government's own communications.  it also prohibits the
>government's support and promotion of religious communications by religious
>organizations." 109 S. Ct. 3086, 3105 (1989).
>
>Remember that the display in _Allegheny County_  was not in the "gallery
>forum," where cultural displays were usually placed.  I do not know whether
>Independence Hall is a public forum, like the "gallery forum," or not a
>public forum like the Grand Staircase where the Allegheny County creche was
>placed.

That will be the critical issue: whether the site in question was a
traditional public forum or not.

It seems to me important to bear in mind in these cases the tension over
the continued viability of the Lemon establishment/promotion test. While I
would side with O'Connor on its continued viability, Scalia and Thomas and
crew keeping looking for ways to bury it (indeed, Scalia uses that metaphor
in _Lamb's Chapel_). Post-Allegheny cases would suggest the Lemon test may
not be dispositive of the issue here, because the Court so readily
distinguishes it in later cases.