• Key point. Government practices that endorse religion are permissible only if they have a secular purpose, a primary effect that does not advance religion, and do not lead to excessive entanglement between church and state.

Federal courts approve use of “blue devils” nickname and mascot by public school, but outlaw use of a cross on a city’s official seal. In the first case, students and parents sued a public school district to force it to discontinue use of the school’s nickname “blue devils” and the associated symbol. The lawsuit asserted that use of this name and symbol violated the first amendment ban on the establishment of religion. A federal appeals court ruled that the name and symbol did not constitute an unlawful establishment of religion. The court, relying on the Supreme Court’s current interpretation of the first amendment, concluded that the nickname would be permissible if it had a secular purpose, a primary effect that neither advanced nor inhibited religion, and did not lead to an excessive entanglement between church and state. The court concluded that all three tests were met. In finding a “secular purpose” the court relied on affidavits from several school officials who stated that the name and symbol were designed to intimidate athletic opponents. In finding that the primary effect of the name and symbol did not advance or inhibit religion, the court observed that “no reasonable observer would believe that the use of the devil as a mascot is meant to endorse or disapprove any religious choice. No reasonable person would think that the school authorities here are advocating satanism anymore than … Duke University or numerous other schools are encouraging worship of the devil when they use the name and symbol.” The court stressed that both the content and the context of a religious display must be analyzed in evaluating its primary effect. The court concluded that the establishment clause protects the rights of the few, but “the few must have a reasonable view of the effect of the picture or symbol.”

In another case, another federal appeals court ruled that a city seal that contained a cross was an impermissible establishment of religion. It ordered the cross removed. The city of Edmond, Oklahoma adopted a seal in 1965 following a competition. The winning entry contained four quadrants, one of which depicted a cross. The seal is displayed on city flags, police officer uniforms, city vehicles, some road signs, and in the city council chambers. A few non—Christian citizens sued the city, claiming that the depiction of the cross on the city’s seal amounted to an unconstitutional establishment of religion. The court agreed. It applied the same three—part test summarized above, and concluded that the use of the cross on the seal had a primary effect of advancing Christianity. In reaching its conclusion, the court pointed to the following factors: (1) The cross was prominently displayed and was the only feature in the seal that was surrounded by rays of light. (2) The seal is used and displayed pervasively around the city. “It is not displayed once a year for a brief period … but rather it appears on all” city paper work, vehicles, and police officer uniforms. The court rejected the city’s argument that the seal is permissible because it symbolizes the unique history and heritage of the community. It observed, “the city may not honor its history by retaining the blatantly sectarian seal …. These symbols transcent mere commemoration, and effectively endorse or promote the Christian faith.” Kunselman v. Western Reserve Local School District, 70 F.3d 931 (6th Cir. 1995) (blue devil); Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir. 1995) (city cross). [ The Establishment Clause]

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