DOES CURRENT FIRST AMENDMENT LAW ENCOURAGE OFFICIAL "SCRUBBING"?

Listening to the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Property Rights hearing on religious freedom today (here). The title of the hearing is "Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square."

There's a lot of talk about the unintended effects of first amendment doctrine, namely, that the state of the law makes the threat of lawsuits based on the endorsement test or the psychological coercion test credible. According to the story told by Prof. Vincent Phillip Muñoz, this creates an incentive for public officials to attempt to avoid litigation by scrubbing the public square of religious expression.

Two questions. First, is this true, as an empirical matter? My impression is rather that there is widespread resistance at ground level to removing religion from the public sphere. There may be high-profile cases of litigation avoidance, but there are also high-profile cases of local officials thumbing their noses at the perceived overreaching of the Supreme Court. Consider Judge Roy Moore's actions over the past year, for example. So, the question I would ask is: precisely how much incentive does current religious liberty jurisprudence give to local officials to engage in litigation avoidance through suppression of religious expression?

(And as an aside: after listening to Roy Moore, I fear for the sanity of the voters of Alabama.)

Second, throughout the hearing, both senators and witnesses made use of a popular trope in stories about religious freedoms, which goes: well-funded public interest litigators from the ACLU and other organizations ("professionally hostile to religious expression" in one phrase from one of the witnesses, I think Muñoz) outgun defenders of religious expression. Again, on the level of actual data -- funding data, or data on the behavior of public interest litigators -- is this true? Seems to me that I've been hearing an awful lot from pro-religious expression groups such as the ACLJ and the Rutherford Institute recently. (Last week I walked by some nice digs that the ACLJ has across the street from the Supreme Court.) And Congress has helped out such groups with laws as the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act (the second a reincarnation of the first, which was struck down by the Supreme Court in the famous case of Boerne v. Flores). RLUIPA encourages pro-religious expression suits.

My sense of things is that the legal landscape has changed over the past decade, as law responds to pressures (not only from Republicans) to include religion in the public sphere. My hunch is that the ACLU as bogeyman story needs to be taken with a heavy dose of salt, and I'd like to see actual data on this question.