Higher Law in the Public Square Meets the High School Cheerleader

10/16/2009—Professor Mark Silk, the Editor of Religion in the News and the Director of Leonard E. Greenberg Center, and professor of religion and public life at Trinity College in Connecticut, has asked the perfectly direct question of my higher law proposal for the Establishment Clause on the Greenberg Center blog, Spiritual Politics: “Drop kick me Jesus”. In the post, Professor Silk describes the custom at a Georgia high school at which the football team bursts through a large banner containing a biblical phrase held up by the cheerleader squad. The picture on the blog is of a banner quoting Philippians 3:14: “I press on toward the goal to win the prize for which God has called me in Christ Jesus”.

Professor Silk asks “how Bruce Ledewitz's ‘plausibility’ test would apply in this case. Is there a plausible secular justification for the Philippians 3:14 banner above?"

The answer is no, there is no plausible secular justification for this banner quote or for the entire practice of Bible citation. This is an easy case in which every Justice on the Supreme Court would agree that there is an Establishment Clause violation, except possibly for Justice Thomas, but only on federalism grounds. And I am fortunate, since the plausibility is so deferring to the government, to now have an example in which the test has some teeth. Most uses of religious imagery by government will be constitutional under my proposal, but this one is so extreme that it cannot be regarded as anything other than an endorsement of Christianity in particular and biblical religion in general.