Charles, if you really are an attorney, that’s really neat. It would explain why you write so well.

I am also an attorney, and while my practice is not devoted to constitutional law full-time, I do “dabble” in the area for pro bono matters and my first legal publication was on a conlaw issue. (My way of saying—please don’t just disregard this as the opinion of an idiot, though you still may do so—it’s a “free” country, or at least it used to be).

At any rate, the exact meaning of the establishment clause is not settled. At this point, the establishment clause has been construed as covering almost any religious expression in public. This would tend to support your position.

However, the Supreme Court has not, to my knowledge, really addressed the establishment clause since the lineup changed drastically a year or two back. Furthermore, Justice Ginsburg has been a reliable vote for the position you are taking (going so far as to not recuse herself from the ACLU case in Kentucky (McCreary?) even though she was former head counsel—5-4 opinion, by the way). There appear to be at least four justices who believe the establishment clause prohibits Congress from “establishing” a national religion, or prohibiting practice of a religion (let’s not get into how you define religion). I say “at least” because Justice O’Connor was typically a swing vote on this issue and she has been replaced by Justice Alito.

In other words, I believe you are correct at this time, but I have a feeling that the Supreme Court could scale back on this if a new case is taken up some time soon.

Constitutional literalists, e.g., Justices Scalia and Thomas, have made clear that they interpret the Constitution much more literally (See Thomas’ opinion in the Michigan University case (discrimination is never okay, even to enforce the 14th amendment) and Scalia’s recent opinion in the Heller case (2nd amendment)). I think they may have 5 votes right now to address the establishment clause.

Keep in mind, this lineup has considered free speech and has made clear that the expansive reading that really began with the Warren court is not going to continue flying.

That’s just one opnion, and the other lawyers reading can (and most certainly will) disagree. I can take it.

Be well.