robertmw at MINDSPRING.COM
Wed Dec 10 16:29:00 PST 1997
Mark Scarberry wrote:
>Suppose that during the late 1700's a creche was placed in Independence Hall
>each December. A desire on the part of the state to recreate the
>Hall scene with historical accuracy could constitute a secular purpose for
>allowing the creche now in 1997 and not allowing other displays. Would a
>disclaimer (that the state doesn't endorse Christianity but is simply
>recreating a historical venue) be necessary to avoid an Estab. Clause
>violation? Would a disclaimer be sufficient?
In view of Lynch v. Donnelly, 465 U.S. 668 (1984), a desire to recreate the
history of the building, even without a full-blown disclaimer, would
probably survive constitutional scrutiny.
The hypothetical does add an interesting wrinkle: what was the original
intent in the 1700's of the creche? Presumably it was purely religious and
would not survive the purpose prong of _Lemon_. Absent the avowed recent
secular purpose -- historical reenactment -- it would suggest a non-secular
purpose that would make it more subject to attack if all the town were
doing was reviving an ancient practice.
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Rob Weinberg, Montgomery, AL
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