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Today in the Community: December 21, 2011

Our Community discussion of the Establishment Clause continues today as we consider the future of the Lemon test—a three-part test stating that governmental actions do not violate the Establishment Clause if they have a secular purpose, do not have the principal or primary effect of advancing or inhibiting religion, and do not foster an excessive entanglement with religion.  The Court has applied Lemon inconsistently, and several Justices have disputed whether the test ought to continue to guide Establishment Clause inquiries.  These dissenters have argued that the question should turn instead on whether particular governmental conduct was historically understood to violate the Establishment Clause, and particularly on whether the governmental action at issue involves coercion.  Justice Scalia, by far the most colorful anti-Lemon advocate, has described the test as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”  Today, we ask your thoughts about whether the Court will overrule Lemon v. Kurtzman, in whole or in part, and (if so) what test the Court is likely to adopt in its stead.  We also ask which test you think ought to govern the Establishment Clause.

Meanwhile, our discussion of the Court’s recent Establishment Clause cases continues.  Yesterday’s insightful comments appear below the jump.

Jordan Lorence 

I was very disappointed that the Supreme Court declined on December 5 to take up the Bronx Household of Faith case from the Second Circuit, a case Scotusblog noted as a Petition to Watch. The Second Circuit upheld a NYC school board policy that prohibited private religious services from the public schools during nonschool hours, while allowing virtually any other private meeting. Because this is private religious expression, there is no Establishment Clause issue when the government merely accommodates those speakers in an empty governmental building. By saying that there are Establishment Clause implications that NYC can legitimately act on to exclude private religious expression, the Supreme Court allowed a confusing decision to stand that conflicts with what the Supreme Court has said in its equal access decisions like Widmar v. Vincent, Lamb’s Chapel and Good News Club.

Richard Schragger 

The prior comment raises an important point about the Court’s religion clause doctrine: it is being supplanted in important ways by free speech doctrine. Since the mid-1990s, the equal access cases have turned what would be Establishment Clause cases into limited public forum cases. And the recently decided Christian Legal Society case, in which the Court upheld a law school’s application of a non-discrimination rule to a religious group, turned on a debate about the extent and nature of the right of expressive association. The upcoming ministerial exception case, Hosanna-Tabor, also raises expressive association questions. Like Christian Legal Society, it asks to what degree the government can regulate discrimination when practiced by certain kinds of associations–in that case, a church.

These cases have been moving toward treating religion just like other forms of expression, speech, and association. But the equal treatment regime tends to under-appreciate Establishment Clause harms and under-protect free exercise values. This is generally the direction the Court has been heading in for some time–certainly since Zelman, the school vouchers case, and Smith, the peyote case. Thus, while the doctrine is somewhat in flux (many of these cases have been decided 5-4), the general trajectory was established in the Rehnquist Court. A significant church-state relationship does not seem to bother a majority of the justices. Indeed, for Justices Scalia and Thomas, the Establishment Clause does very little work indeed.

Andrew DeFranco 

Recent religion clause jurisprudence has been moving towards having a greater “play in the joints” between establishment clause violations and free exercise rights. Free exercise has been constrained under Smith, and volitional statutory accommodations like RFRA and RLUIPA have become more permissible. I think the unintended consequence of this is that mainstream religions are able to exercise more religious freedoms, while fringe and disfavored religions have less.

Especially under Justice Scalia’s interpretation of the Lemon test–where under the purpose prong, any conceivable secular justification is acceptable even if the purpose is overwhelmingly colored by religion–politically powerful religions are able to carve out special treatment. This is why the government can erect religious icons, such as the nativity scene or the Ten Commandments, and why the second Bush administration could pursue its faith-based initiatives program which actively funneled grants to religious service providers over secular ones. Madison’s conception of the establishment clause, where the government was forbidden from taking three pence from a man and giving it to advance another’s religion, is clearly far from the court’s current jurisprudence.

Recommended Citation: Tejinder Singh, Today in the Community: December 21, 2011, SCOTUSblog (Dec. 21, 2011, 8:27 AM),