Thread by @dilanesper

I will leave it to you to decide whether you think this is right or not, but the fact the Boston flag case is unanimous reflects the death of an Establishment Clause theory that a lot of people have asserted for a long time. 1/ #appellatetwitter
supremecourt.gov/opinions/21pdf…

That theory is the notion that the government is barred by the First Amendment from having any religious expression come out of its metaphorical mouth at all. It's a theory that has longstanding roots. 2/

Go back to the first school prayer case, Engel v. Vitale. There, SCOTUS held that public school teachers couldn't lead prayers in class. Nowadays we'd interpret that as a prohibition on religious coercion, but at the time, many people thought it stood for a much broader rule. 3/

Since Engel, the Court has stuck with the prayer rule (prohibiting graduation prayers and public address prayers at HS football games, both on coercion grounds) while rejecting its extension to other forms of religious expression associated with the government. 4/

So:

Legislative prayers? OK.
Nativity scenes? OK.
Crosses on the side of the road? OK.
The Ten Commandments? OK if they are on a big stone monument, at least.
Transportation to religious instruction? OK.

Etc. 5/

The Boston case arose, perhaps, out of a place where they still believe in the old way of thinking, that the government couldn't associate itself with religious speech at all because it violated the Establishment Clause. So the City refused to fly a religious flag. 6/

And the notable thing about today's ruling is it is 9-0. NOBODY on the Supreme Court believes in the maximal Establishment Clause anymore. NOBODY stood up for the City of Boston and their concerns about endorsing religious expression. 7/

This is really important. I think a lot of thinkers in academia and the legal world still think of the Establishment Clause as not only prohibiting religious coercion, but any connections between the government and religion. But that isn't the law and it's 9-0 not the law. End/