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Here’s a post about two advertisements I happened to see while riding the New York City subway this past weekend. The ads reveal much about the subtle disparagement churches and other religious organizations sometimes experience from government agencies in the Big Apple.

subwayTake a look at the photo on the left. It shows an ad for Marble Collegiate Church in Manhattan. As far as I can tell from its website, Marble is a mainline, Protestant congregation, committed to progressive causes like diversity and same-sex marriage. Marble, the ad proclaims, is “church the way you always hoped it would be.”

Pay particular attention to the bottom of the ad, which contains a disclaimer added by the MTA, the government agency that runs the subway. The disclaimer is in bold type and takes up about 25 percent of the ad space. It is unsightly, in a different font and format from the rest of the ad, and definitely distracts the reader. It says: “This is a paid advertisement sponsored by Marble Collegiate Church. The display of this advertisement does not imply MTA’s endorsement of any views expressed.”

This is very odd. True, the Supreme Court’s “endorsement test” provides that government may not take actions a reasonable observer could understand, in the circumstances, as an endorsement of religion. (This explains why local governments are so careful about Christmas decorations on public property.) The MTA presumably insisted on the disclaimer to make clear to subway riders that, by posting Marble’s ad, it did not endorse the church’s underlying religious message.

But the endorsement test does not require a disclaimer here. No reasonable observer could think the MTA had endorsed Marble’s message by posting its ad. There are ads in subway cars for a variety of businesses and nonprofit organizations. Nobody thinks the MTA vouches for the truth of those ads, or even the good faith of the sponsors. Will cosmetic surgery “change your life?” Will Foursquare “lead you to places you’ll love?” Who knows? But the MTA doesn’t think it necessary to attach disclaimers. No one would expect it to do so.

For example, here’s an ad my brother pointed out to me, for a companybooze called delivery.com. The ad says the company will deliver beer, wine and liquor on demand, thereby allowing customers to “Booze Wisely.” There’s no MTA disclaimer in this ad. But why not? If reasonable people could think the MTA had endorsed Christianity by posting Marble’s ad, why couldn’t they think the MTA had endorsed drinking by posting delivery.com’s? If anything, the danger of misunderstanding is higher. The delivery.com ad offers a 30 percent discount to people who include the word “SUBWAY” with their orders. Marble didn’t trade on the name “subway” or offer special treatment for straphangers.

Now, supporters of the MTA’s disclaimer policy might argue there’s no real harm here. The disclaimer merely reminds people of an important constitutional principle, namely, that civil government does not take positions on the truth of religious propositions—like whether Marble really is, as its ad claims, what people would hope from a church. (The MTA policy apparently applies to ads with “political” and “moral”content as well as “religious,” though I’ve seen plenty such ads, without any disclaimers. Perhaps the MTA hasn’t gotten around to labeling everything.) At worst, the disclaimer is a bit unnecessary. What’s the cause for complaint?

It’s this: Requiring church ads—and only church ads—to include disclaimers is a kind of disparagement that places churches at an unfair disadvantage in the marketplace of ideas. The inescapable implication is that there is something uniquely impolite and dangerous about religion—more than doubtful cosmetic treatments, consumer fantasies, and boozing it up at home—and that government must keep its distance. The MTA’s policy doesn’t suggest state neutrality respecting religion, but disapproval. For the record, the endorsement test prohibits that as well.

Mark Movsesian is the Frederick A. Whitney Professor of Contract Law and the Director of the Center for Law and Religion at St. John’s University School of Law. His previous blog posts can be found here.

More on: church and state, Law

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