City's snowplows at heart of church-state debate

SIOUX FALLS, S.D. — Mayor Mike Huether's mother isn't going to like it if her boy's stance on religious artwork adorning city-owned snowplows ends up in front of the U.S. Supreme Court.
Or so he jokingly suggested at a news conference last week.
But the city's announcement that it was putting disclaimers on 27 Sioux Falls snowplows decorated with student art — including two that carry religious themes — doesn't look at first blush like the kind of compromise that will make supporters of church-and-state separation happy.
Or absolutely keep Mother Huether's son out of the courts, either.
A lawyer working with the Siouxland Freethinkers — a group that calls itself a community of agnostics, atheists, humanists and skeptics — hints at as much. Patrick Elliott of the Wisconsin-based Freedom From Religion Foundation sent Sioux Falls City Attorney David Pfeifle a letter Thursday telling him that the Freethinkers want the religious artwork removed.
It's nothing against the students, Elliott insisted. But he reminded Pfeifle that the Establishment Clause in the First Amendment prohibits government sponsorship of religious messages. The artwork done by students at Lutheran High School and Sioux Falls Lutheran School that includes the words "Jesus Christ" and "Happy birthday, Jesus" violates the Establishment Clause, Elliott said.
"It is inappropriate and unconstitutional for a government entity to display proselytizing Christian messages to its citizens, including on government equipment and facilities," he wrote, and then he cited a number of court cases to back his claim. "These displays send the exclusionary message to nonbelievers and non-Christians that they are outsiders in their community, and a corollary message to Christians that they are insiders and favored citizens."
Pfeifle indicated Friday that he hadn't read Elliott's letter yet. "I'll review it," he said, "kick it around a few days and respond."
He did make it clear at a Thursday news conference, however, that in looking at similar disclaimer cases across the country, the phrasing the city intends to use on the plows "is sufficient to alleviate any Establishment Clause concerns. We're confident this will pass legal muster."
What the disclaimer says is that any messages or views expressed on the plows are not those of the city or endorsed by the city.
While there seems to be no case studies across the country that exactly match this one, Pfeifle did reference one situation where a school district allowed a Bible camp group to send information home with students in a backpack insert program. The district put a disclaimer in with the inserts saying it was not endorsing the Bible camp group, and a federal appeals court held that the disclaimer was sufficient to avoid Establishment Clause concerns, Pfeifle said.
"But also, when you're doing research, you don't only look at case law," he said. "There are also legal treatises, and some of those discuss how a disclaimer could work. In a lot of these cases ... the Establishment Clause claims were pretty weak. The treatises were pretty clear on that."
Elliott has his doubts. He said inserts going home through a "limited forum," such as a backpack program, is different from situations such as snowplows. And the backpack materials in question "are not situated such that they strongly signal government approval," he said.
"Disclaimers have been tried and failed in government display cases," he said. "There is absolutely no precedent supporting the view that a disclaimer in this context would shield the city from violating the First Amendment."