haroldhallikainen at JUNO.COM
Wed Dec 10 19:39:45 PST 1997
On Wed, 10 Dec 1997 16:29:00 -0600 Rob Weinberg <robertmw at MINDSPRING.COM>
>Mark Scarberry wrote:
>>Suppose that during the late 1700's a creche was placed in
>>each December. A desire on the part of the state to recreate the
>>Hall scene with historical accuracy could constitute a secular
>>allowing the creche now in 1997 and not allowing other displays.
>>disclaimer (that the state doesn't endorse Christianity but is
>>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
>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
>intent in the 1700's of the creche? Presumably it was purely religious
>would not survive the purpose prong of _Lemon_. Absent the avowed
>secular purpose -- historical reenactment -- it would suggest a
>purpose that would make it more subject to attack if all the town were
>doing was reviving an ancient practice.
Interesting question... If, in today's light, a previous
practice is unconstitutional, can it be continued for "historical
perspective?" As I recall from the decision on the Mount Davidson Cross
in San Francisco, a long-standing violation doesn't make it less a
violation (it had been claimed that the cross was a historic landmark,
and indeed the original lighting of it was done by the President with a
special telegraph circuit).
> * * * * * * * * * * * * *
> Rob Weinberg, Montgomery, AL
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