Monday, August 31, 2009

Religious materials at the post office violate the Establishment Clause

A post office in Manchester, Connecticut uses contract postal units (CPU), which are postal facilities operated by private entities on private property (such as general stores or private homes) pursuant to contracts with the U.S. Postal Service. In other words, the post office – obviously a governmental function – operates on private property. So what’s the problem? The Manchester CPU is a storefront with postal facilities on one side and the Full Gospel Interdenominational Church’s outreach and ministry efforts on the other, with some spillover. This creates an Establishment Clause problem.

The case is Cooper v. U.S. Postal Service, decided on August 20. Cooper sued under the Establishment Clause of the First Amendment, which mandates the separation of church and state. Cooper was offended by the religious materials at the CPU, and according to his affidavit he was told “that [he] could go somewhere else if [he didn’t] like it.” Had the Post Office displayed religious materials in its usual government buildings, Cooper would certainly win. The kicker here is that a private entity is involved, which changes the constitutional calculus. Cooper won his case in the district court, and the Court of Appeals (Jacobs, Wesley and Crotty) affirms, but it modifies the remedy.

First, the underbrush. Resolving some procedural issues before it gets to the good stuff, the Second Circuit finds that Cooper has standing to bring the case. You have standing if you suffered some kind of injury from the challenged practice. Cooper testified that the religious displays were enough to send him to another post office; that gives him standing to sue. The Court of Appeals also finds that the CPU is a state actor, which means that although a private entity ran the postal operation, since handling and delivering the mail is normally a government function, the private entity may be treated as government actor and it must comply with constitutional standards.

While Cooper clearly prevails on these procedural questions, he kinda wins on the substance. He is right that the First Amendment is violated here, but the court order that he won in the district court is too broad. The religious display at the post office violates the Supreme Court’s Lemon test, as there is no secular purpose here. (Lemon was decided in 1971 and many commentators and judges dislike it because it is too difficult to apply, among other reasons). The Second Circuit finds that “the displays on the postal counter soliciting prayer requests and advertising the mission express a distinctly religious purpose, and that they fail spectacularly under the first inquiry of Lemon.” As the Court thus does not have to bother with the other two prongs of the Lemon test, this is good for Cooper.

But not good for the district court, which ordered the removal of all religious materials from the CPU even though the CPU also housed entities other than the church and the post office. The CPU was also ordered to stop advancing religious causes. The Second Circuit rejects this broad remedy. “The removal of all religious messages would render the premises a single-use post office, and would prevent the second legitimate use to which the premises are dedicated. This remedy does not correspond to the scope of the violation and the resulting harm.” The district court’s remedy is too broad. Religious materials do not have to be removed from the entire facility. They should only be removed from those parts of the facility where postal functions are located. Chief Judge Jacobs advises a more narrow court order: the CPU “is directed to create and install a barrier in front of the postal counter that is a visual cue and gives a sense of passage from one area of the space into another, thereby delineating space exclusively dedicated to the public function from space dedicated to other things.”

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