Easter eggs and the First Amendment

The Biden White House came under fire for its role in the decision to ban Easter eggs decorated with religious themes or symbols from a children’s contest sponsored by the American Egg Board. The White House has cooperated with the Egg Board for years and displayed the winning eggs as a part of White House celebration of Easter.

The Egg Board explained that it has followed this same policy for decades—banning religious art in a contest to celebrate Easter—so to place blame on the Biden administration is unfair. The contest, so the Egg Board says, had the same rules under the Trump administration.

Apparently, this has never surfaced in public discussion until now. Consequently, no blame can be placed on any presidency for this discriminatory rule—until now.

The Biden White House continued the policy of banning religious symbols from Easter eggs. There was an opportunity not only to point out how silly such a policy is, but to clarify how government interacts with religion—as though religious symbols on eggs constitute some nefarious “establishment” of religion.

The American Egg Board was created by an Act of Congress in 1976. Its directors are appointed by the secretary of agriculture. The board’s powers and duties are established by the Code of Federal Regulations, Title 7, Sub. B, Chap. XI, Part 1250. Accordingly, the American Egg Board operates under color of law and is subject to the rules of the First Amendment like every other government and government-controlled entity.

The decision to ban religious artwork in a contest about Easter is logically troublesome from the beginning. It reminds me of a case that I brought against two school districts in central Florida in the 1980s that banned religiously themed student art from a contest for Christmas. The schools had to pay my clients and admit their constitutional error.

The schools in that case, like the American Egg Board here (I presume), were not operating out of deliberate religious bias, but out of the erroneous view that the First Amendment’s Establishment Clause forces the government to exclude anything religious from its operations.

I argued and won a unanimous decision in the United States Supreme Court in 1986 that proves this myth to be error. In Witters v. Washington Department of Services for the Blind, the Court ruled 9-0 that the Establishment Clause does not require the government to discriminate against religious individuals in government programs. Larry Witters was studying for the ministry and was eligible for state funding in a program for blind students. The State of Washington thought it was unconstitutional to let one religious student participate in a broad government program.

The Supreme Court has repeated this holding on several occasions. Religious speech is not second-class speech and religious people are not second-class citizens.

If a student enters a religious egg in the art contest, the egg is the work of the student and not the work of the government. This creation is fully protected by the Free Speech Clause, and discrimination against the student is forbidden by both the Free Exercise Clause and the Equal Protection Clause.

This is not a close call. The act of banning religiously decorated eggs is blatantly unconstitutional.

President Biden is supposed to defend the constitutional rights of all Americans. And he had a golden opportunity here to stand up for religious freedom that would have surprised religious conservatives and perhaps soften just a bit of their distrust of his conduct.

He missed the opportunity badly.