Dwight Kealy, MAR
After reading the majority and dissenting opinions in Kennedy v. Bremerton, I ask my students again if they think it would be okay if I started class with prayer. The Lemon Test’s question about excessive entanglement is no longer the first consideration. Now it would be a question of whether I was speaking as a private person or in my role as a government employee. The students agree that it would be inappropriate for me to pray during class, but what about after class? After class, I may check sports scores on my phone or communicate with friends and family just like Coach Kennedy after his game. So far, students have unanimously agreed that after Kennedy v. Bremerton, I could pray after class in the middle of the classroom and students would be free to join or not join. Some suggest that it should be quiet, but I remind them that, based on Kennedy, I can call the press and there’s a chance students may get trampled in a stampede. Although permitted, I conclude that this is not a practice I would do or encourage for several reasons. 1) It is inconsistent with what I feel is my mission of teaching law to a diverse student body at a secular university, and 2) An attorney once joked that in the United States everyone is guaranteed their “decade in court.” And I have no interest in spending a decade in court.
Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017 (10th Cir. 2008)
The 2008 case of Weinbaum v. City of Las Cruces, N.M. provides a preview of how courts may apply Kennedy v. Bremerton’s “history and tradition” test. For full disclosure, the beautiful city of Las Cruces is my hometown and the hometown of my employer, New Mexico State University. My Business Law colleague Professor Matthew Holt served as counsel for the defendant in this case.
In Weinbaum v. City of Las Cruces, N.M., the plaintiff argued that the city’s symbol consisting of Christian or Latin crosses—that is, a cross with three equal arms and a longer foot—violated the Establishment Clause by endorsing Christianity. The City of Las Cruces is located about 225 miles south of Albuquerque, New Mexico, at the intersection of what was the East/West Butterfield Overland Mail Route—a trail from San Antonio, Texas to California—and the North/South Spanish El Camino Real de Tierra Adentro (“the Royal Road to the Interior Lands”). As such, plaintiffs argued that the city should be described as the crossing point between these two major trails without any reference to the Latin cross that the district court noted has a legacy that while “humbling, inspiring, or empowering to some, [also] intimidates, inflames, or unnerves others.”
In response, the court looked at the history and tradition of the name “Las Cruces.”