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Editor's Note :

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Tom Goldstein Publisher

Posted Mon, October 17th, 2011 10:35 am

The Establishment Clause

Today’s discussion involves the Establishment Clause.  The Court has pending before it two petitions (here and here) – which it has relisted three times – involving a Utah program that posts crosses at the locations where highway patrol officers are killed.  Recent decisions involving the Establishment Clause include cases addressing the Mojave Cross and the Summum religion.  Please contribute your thoughts on the Court’s Establishment Clause jurisprudence, and on these cases specifically.


  • Tom Goldstein – 0 Promoted Comments

    In this thread, address whether the Court’s current precedent properly construes the Establishment Clause.

    • Aaron Tang – 0 Promoted Comments

      I think to answer this question requires one to be able to identify how, in fact, the Court has construed the Establishment Clause in the context of government use of religious symbols (as presented in the two petitions). The problem is, the Court has been far from clear on what test controls in such cases; some lower courts believe Justice O’Connor’s “endorsement test” is controlling (under which a government use of religious symbols will violate the Clause if an objective observer would view it as an endorsing religion), others view Justice Breyer’s pragmatic ‘legal judgment’ test from his concurrence in Van Orden as controlling. A third view also has some traction – Justice Kennedy’s coercion test that says the Establishment Clause should prohibit government attempts to coerce individuals into practicing particular religions.

      I have to confess that, not being a scholar in this area, all three of these tests appear to have their difficulties, and I don’t know which one best reflects the proper understanding of the Establishment Clause. Perhaps our founding history, where religion played a prominent role in civic life, counsels towards a more permissive test toward government use of religious symbols. Yet one also hesitates to adopt a view of the Clause that would dramatically change the relationship between government and religion.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss the major Establishment Clause-related issues that you see arising in the coming years.

    • Kevin Russell – 0 Promoted Comments

      To my mind, the most interesting questions arise in the interplay between the Establishment and Free Exercise Clauses. The Court has been clear that there is some play in the joints between the two that allows the government to make special accommodations for religious institutions (to relieve burdens on the exercise of religion) without making similar exceptions for secular groups. But the extent of the leeway is unclear and subject to dispute. The question arises in a number of contexts, including most interestingly, when exceptions are given (or proposed) to religious institutions from civil rights requirements. During the Bush administration there was a push, for example, to exempt religious groups that accept federal funding from having to comply with some non-discrimination requirements in their employment decisions or decisions about whom to serve. Particularly if there are further advances in prohibiting discrimination on the basis of sexual orientation, we can expect that some legislatures (perhaps including Congress, but even if not, at the state level) will create such exemptions. And that will give rise to the question whether such accommodations are consistent with the Establishment Clause.

    • Brian Lusignan – 3 Promoted Comments

      In light of the Court’s decision in Summum, I have been waiting for a case considering the impact of the government speech doctrine on the interpretation of the Establishment Clause. Alito’s majority decision in Summum emphasizes that public displays such as the Ten Commandments communicate a variety of messages. On the other hand, when the government says, “I am the Lord thy God . . . Thou shalt have no other gods before me,” it appears to be endorsing Judeo-Christian religion, even if that is only part of its message.

      I wonder if the Summum case, itself, might eventually present this issue to the Supreme Court. As Scalia noted in his Summum concurrence, the case was litigated “in the shadow of the First Amendment’s Establishment Clause.” On remand, the District Court of Utah allowed Summum to add an Establishment Clause to its complaint against the City of Pleasant Grove, but dismissed the complaint on the grounds that “Summum’s claim under the Establishment Clause is disposed of by Van Orden either expressly or by necessary implication, and also by the Supreme Court’s unanimous opinion in the instant case” (2010 WL 2330336). However, it is not at all clear to me that Van Orden addressed the interaction between government speech and the Establishment Clause. I do not know whether this decision has been appealed to the Tenth Circuit.

      Ultimately, I do not think that the Court will determine that a city’s inclusion of a Ten Commandment’s monument in a public park with a variety of other monuments (as in Van Orden and Summum) violates the Establishment Clause, even if it is government speech (indeed, Scalia and Thomas said as much in Summum). However, I will be interested to see if the government speech doctrine forces the Court to be more intellectually honest in its approach to the Establishment Clause. Having recognized that the government speaks through its public displays, the Court must address the extent to which the government may communicate religious messages in other aspects of public life.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss how you think the Supreme Court should resolve the Utah case.

    • Eric Rassbach – 1 Promoted Comment

      Only the government can violate the Establishment Clause. That means that in deciding any Establishment Clause challenge, courts must first determine what state action, if any, is complained of. In display cases, that means that courts first have to identify where the government is speaking and where private parties are speaking. Thus in a challenge to a religious painting in a government-owned museum, the government speaks as a curator, not an author, and the painter’s religious message, however devout, cannot be attributed to the government.

      As we argued in our amicus brief in support of certiorari, http://www.becketfund.org/wp-content/uploads/2011/07/Davenport-Becket-Fund-Amicus-Brief-ISO-Certiorari.pdf, the problem with the Utah crosses case is that there isn’t any government speech going on — the crosses were designed, erected, maintained, and owned by a private association, the Utah Highway Patrol Association. The only government connection is the land that the crosses stand on; one of the crosses the Tenth Circuit ordered torn down lacks even that connection, since it stands on private land. In the absence of evidence that the government manipulated the rules of the speech forum to favor (or disfavor) religion, the mere fact that a display stands on government land is not enough to create an Establishment Clause violation. Indeed, the Tenth Circuit’s holding that it did here shows just how easy it is to twist Establishment Clause precedent into a justification for hostility towards religion.

      It is also worth noting that even if the Court does not take this case, there are others waiting in the wings, including the ACLU challenge to the Mt. Soledad cross near San Diego, http://www.ca9.uscourts.gov/datastore/opinions/2011/10/14/08-56415.pdf, and the American Atheists challenge to the inclusion of the “Ground Zero Cross” in the 9/11 Memorial museum, http://atheists.org/law/Ground_Zero. Given these cases and others, it seems likely that the Court will soon have to grapple with the many unsolved problems of Establishment Clause jurisprudence.

  • Tom Goldstein – 0 Promoted Comments

    I personally think that this is a doctrine in transition at the Court like several others in the wake of Justice O’Connor’s departure. The Utah case could be a stepping stone to still more prominent issues, including revisiting the Court’s jurisprudence on Ten Commandments monuments (which the Justices recently declined to take up). The multiple relists surprise me because I viewed these petitions as pretty easy grants, but they may get taken yet.

    • Richard Garnett – 1 Promoted Comment

      As I see it, the Establishment Clause would be best understood as not having much (if anything) to say about the line between appropriate (or, at least, acceptable) and inappropriate instances of public “ceremonial deism,” holiday displays, acknowledgements of religion, etc. The concerns embodied in Justice O’Connor’s “endorsement test” are important ones — we *shouldn’t* make some members of our political community feel like outsiders, and we *shouldn’t* think that membership in our political community depends on whether or not one shares the majority’s religious tradition or views. Still, the test cannot be applied well by judges. Better to leave these matters to politics, and to citizens’ conscientious judgments about what civic friendship demands.

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