Legal Commentary

Later in the same walk I blogged about yesterday I was brought up short (ok, no more self-referential links) by something I saw on the dashboard of a New York City Department of Buildings car parked on the street.  It was a prayer card of the type I remembered from my childhood.

So here was my thought sequence, more or less:

1.  Religion in a city vehicle. 

2. Of course no problem, it's not the state acting (or even endorsing, since we can assume it's just letting the driver have the card in the car with her).

3. What if it was a prayer bumper sticker ("Jesus Saves" or even simply "Pray") or something like that?  That's different, I think, because ... it's attached to the car?

4. What if the car was assigned to that person for an extended, in the sense that it was his mobile cubicle?  Does that render the "attached to the car" distinction invalid?  But of course I don't know that and I'm not likely to know that.  For all I know, if I see that bumper sticker the City of New York has gone on record for the proposition that Jesus Saves, or that we should pray.  At this point my legal knowledge intrudes and I think about Wooley v. New Hampshire -- though I'm not sure at that point what relevance the analogy has.

5. Or maybe it's that the card is inside the car, although clearly visible to a passer-by.  What's the relevance of that?  That it suggests private religious expression rather than proselytizing?

I raise all this because these thoughts (again, more or less) hit me before I had a chance to map these facts onto religion clause doctrine; they were, essentially, my intuitions.  They seem to tell me this:

a. My gut doesn't accept the coercion-only test for the Establishment Clause -- if not, I wouldn't have so immediately thought there'd be a problem if the prayer card had instead been a bumper sticker.

b. My gut also doesn't accept the non-preferentialist approach to the Establishment Clause -- otherwise, I suppose I wouldn't have been troubled by a bumper sticker that said "Pray."

c. My evaluation immediately gravitated to the idea of endorsement.  (Now this may be a cheat, because I suspect at this point my legal knowledge popped into my head and I latched on to the concept of endorsement; that is, it wasn't purely an intuition about what's appropriate and what's not.)  But still, I did pretty immediately ask myself whether the card suggested that the Department of Buildings was suddenly touting Catholicism.

d. My "endorsement" test required me to make an awful lot of assumptions about what was going on in the situation.  I had to know, for example, that people carried prayer cards around and often put them on their dashboards.  I don't know what exactly to make of this, except that context and personal background is always going to matter when evaluating these issues.

Any other reactions, gut or otherwise?