Washegesic v. Bloomingdale Public Schools

RALPH B. GUY, Jr., Senior Circuit

Judge, concurring.

Although I have labeled my participation in this decision a concurrence, as will readily become apparent, it is much more akin to a dissent. It is a concurrence only because I believe a case can be made that this result is dictated by the decision in Lemon v. Kurtz-man, 403 U.S. 602 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971), as Judge Merritt concludes. I also join in the opinion following the old adage that the best way to get rid of bad law is to rigidly enforce it. 1

As the majority notes, the “offending” religious artifact here is a reproduction of a famous portrait. 2 Copies of this painting can be found all over the United States as well as abroad. Most persons have seen a copy dozens of times in various and sundry locations, probably without paying it any particular heed. It no more conveys the notion of the “establishment” of a religion than a statue of Robert E. Lee in a park suggests we should dissolve the Union.

It has hung on the school wall for 30 years, and the only result that is evident is that the school population has become more religiously diverse over time as has our entire Country. For me at least, a discussion of “psychological damage” resulting from viewing this picture does implicate an “establishment” — but not one of religion. What is established is a class of “eggshell” plaintiffs of a delicacy never before known to the law. I can well understand that someone (perhaps this plaintiff) in some sense could be offended by this portrait, but “injured” is another matter. In this multicultural world that *685 young persons are entering today, I would hope our schools are turning out people with a little more resiliency than is evidenced here.

Earlier I said that “a case can be made” that the result here is dictated by Lemon , but that is as far as I would want to go with it. Lemon is much criticized and appears to be applied differently from case to case, or not applied at all. If the Supreme Court ever gets around to abandoning Lemon , and there is certainly significant impetus within the Court to do so, I would hope the new test would have a “de minimis” prong to it.

I do not mean to suggest that the “appropriateness” of this picture in the school is not a legitimate issue for discussion, but it ought to be resolved within the school context. In this age, this picture hanging alone might reflect some insensitivity to the diversity that is now America. But let us tackle the problem with some good old Yankee ingenuity— lobby for a course in comparative religions; put a picture of Martin Luther King on the wall; form a Zen Buddhist club; wear a t-shirt proclaiming the virtues of agnosticism; but, if I am permitted to use the expression, for heaven’s sake, stay out of the courthouse and quit trivializing the Constitution!

. In his inaugural address on March 4, 1869, President Ulysses S. Grant said: "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”

. Is there no room under the Constitution for a famous portrait to stand on its own as a work of art? Some of the most famous and now priceless paintings in the world depict religious scenes, many of them using Christian figures and symbols. According to an article in the March 3, 1994, Chicago Sun-Times, Sallman's “Head of Christ” has been reprinted 500 million times.