Dear Legal Mailbag:

I know that we are going through a tough time right now with the COVID surge. However, I am an optimist by nature, and I am looking right past this little setback to the spring, when things may be back to normal. That will include, I hope, baseball games. At my school, we have an outfield wall for our baseball diamond and, as a small revenue measure, we “rent” space on the wall for advertising. Tony’s Paving and Penelope’s Pizza, for example, have been advertising with us for years, more out of civic engagement than any real hope that their advertisements on the outfield wall help attract customers.

In any event, last week I posted on the high school website my annual invitation for vendors to rent advertising space on the outfield wall at the baseball diamond. True to form, Tony and Penelope were quick to reserve their space. However, I was surprised when the Church of the True Word also contacted me and asked me about posting its message on the outfield wall. I was intrigued, and I asked what the message would say, presuming that it would want to advertise the Church and the times for services. I was surprised, therefore, when the minister told me that he just wanted to post the Ten Commandments for the edification of the spectators. That didn’t seem right to me, and I expressed my reservations. I was surprised, however, when the minister got really snippy with me, asking rhetorically what was more important – God’s Word or pizza? Then, not so rhetorically, he told me that he wouldn’t hesitate to sue me and my school for violating his rights if I don’t allow him to post the Ten Commandments.

I don’t want to get into trouble, in this world or the next. Should I let the Church post the Ten Commandments on the outfield wall (for a price, of course)?

Damned if I Don’t
Dear Don’t:

Let not your heart be troubled. Legal Mailbag is here to help.

The role of religion in our public schools presents interesting challenges from time to time. The rule, as you surely know, is that school officials must be neutral in matters of religion. The challenge is to decide what that means in this case.

In Lemon v. Kurtzman (1971), the United States Supreme Court announced a helpful analytical framework for considering issues involving religion in the schools. In what is now the Lemon test, the Court posed three questions to determine whether governmental action violates the First Amendment prohibition against establishment of religion: does the governmental action (1) have a secular purpose (2) not have the primary effect of either advancing or inhibiting religion? (3) not foster excessive entanglement between the government and religion? While the Lemon test has been criticized and modified by the Court over the years, it remains the dominant tool for deciding such issues.

Here, there is no question that your selling space on the outfield wall as a revenue measure has a secular purpose. Similarly, there is no question that posting the Ten Commandments will not foster entanglement with religion. The challenge here is how to apply the second prong – does posting (or prohibiting the posting of) the Ten Commandments on the outfield wall have a primary effect of advancing or inhibiting religion? Sadly, in these cases, school officials can get sued either way. If you persist in saying no, the Church can bring suit claiming that by your actions the school district violated the Lemon test by inhibiting religion. The Church may also claim that your refusal violates the Church’s free speech rights. Conversely, if you say yes, someone else can sue, claiming that posting the Ten Commandments on the outfield wall advances religion in violation of the Establishment Clause. What to do?

You have to do something, and Legal Mailbag recommends that you stay with your original decision. School officials must avoid actions that convey an endorsement of religion, and permitting the Ten Commandments to be posted on the outfield fence may be such an action. The casual observer would come to the baseball diamond and see an overtly religious message prominently displayed. It would not be immediately apparent that the school district opened up a forum for paid messages, and one could well infer, albeit incorrectly, that the school district was conveying a religious message to the public. Legal Mailbag concludes, therefore, that you are legally permitted to refuse the request to avoid a claim that the school district is endorsing religion in violation of the First Amendment.

Finally, Legal Mailbag reminds you that legal problems are often people problems, and how you say no is just as important as your decision to say no. Feel free to share this column with the minister, and take some time to explain the dilemma you confront. You might even offer to post a notice about the Church and the hours of worship, which would be fine. But do avoid posting the Ten Commandments on the outfield wall!

Originally appeared in the CAS Weekly Newsletter.