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Symposium: The end of a walking dead doctrine?

Richard W. Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

About four and a half years ago, here at SCOTUSblog, commenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound.

Justice Clarence Thomas noted more than two decades ago that the Supreme Court’s “Establishment Clause jurisprudence is in hopeless disarray.” More recently, he has reported that it is “in shambles.” The late Justice Antonin Scalia had pronounced a consonant, but more colorful, conclusion, comparing the so-called “Lemon test” that (some) justices (sometimes) apply in establishment-of-religion cases to a “ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” to frighten little children and attorneys alike. Commentators on the court’s work have used words like “incoherent,” “schizoid,” “chaotic” and “complete hash.”

As Saul Goodman (echoing Homer Simpson) might put it: “Tough, but fair.”

Actually, as we were reminded by the establishment clause dog-that-didn’t-bark in last year’s Trinity Lutheran v. Comer decision, the justices have developed a fairly straightforward method for dealing with financial and other forms of cooperation for “secular” purposes between governments and religious institutions. Although they seemed to have fixed the doctrinal flaws that once prompted the late Sen. Daniel Patrick Moynihan to observe that “atlases” are “books of maps,” their tools for handling cases about signs, symbols, memorials, monuments, prayers and pageants are unwieldy and unreliable, and invite strange, silly challenges. Case in point: A few years ago, a federal court in Montana was asked to declare unlawful the presence on leased Forest Service land near the top of Whitefish Mountain Resort of a beloved, if somewhat kitschy, statue of Christ that was put up in the 1950s by the Knights of Columbus to honor World War II soldiers from the 10th Mountain Division. (“Big Mountain Jesus,” I am pleased to report, survived.)

It is (well past) time for the Supreme Court to come clean about what it is actually doing in “religion in the public square” cases and to scrap both the three-part Lemon “test” that bar examiners and lower courts are required to pretend is the relevant doctrine and the “no endorsement” rule that was grafted onto it by Justice Sandra Day O’Connor – a “refinement,” she called it – in the 1980s. After all, Justice Stephen Breyer’s controlling opinion in the 2005 Ten Commandments case, Van Orden v. Perry, had characterized Lemon as merely a “useful guidepost” for navigating judicial inspection tours of religious displays. And, in Town of Greece v. Galloway, the court’s 2014 decision reaffirming the permissibility of at least some legislative prayers, the Lemon “ghoul” did not shuffle. It is entirely reasonable, then, that another of the questions presented in American Legion is whether Lemon, Van Orden, Town of Greece, “or some other test” should be applied to cases involving a “passive display incorporating religious symbolism.”

Applying Lemon-plus-“no endorsement” – with “due consideration given to the Van Orden factors” such as the monument’s “placement, its physical setting, and the length of time it remain[ed] unchallenged” – a panel of the U.S. Court of Appeals for the 4th Circuit concluded (over a dissent) that the “display and maintenance” of the Bladensburg Cross violates the establishment clause. The court conceded that the cross survives the “fairly low hurdle” of Lemon’s first “prong” because “[g]overnment preservation of a significant war memorial is a legitimate secular purpose.” However, after a “detailed factual analysis of the Cross, including its meaning, history, and secularizing elements” and “the appropriate factors under Van Orden[,]” the majority pronounced that a “reasonable observer would fairly understand the Cross to have the primary effect of endorsing religion.” What’s more, the cross failed the third Lemon requirement as well, by creating “an excessive entanglement between government and religion.” This “entanglement” exists because, first, the government has spent and plans to spend money on maintenance and restoration and, second, the display “aggrandizes [sic] the Latin cross” and uses the “hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments in the park, but also excludes all other religious tenets.”

Now, it seems unlikely that the Supreme Court agreed to hear this case for the limited purpose of what court-watchers call “fact-bound error correction” or to save this particular memorial. That said, even a court content with the state of its public-religion precedents would have good reasons to reverse the 4th Circuit’s ruling. First, assuming for present purposes that the Constitution not only authorizes but requires federal courts to – taking into account, and applying “legal judgment” to, things like the sufficiency of officials’ efforts to prevent bushes from blocking the plaque listing the fallen soldiers or the fact that the American Legion uses a “Christian prayer manual” – divinate the presence of an equal-citizenship-denying, outsider-status-imposing, official “endorsement” of Christianity, the dissenting judge’s lighter-touch version of the exercise seems more consistent with the relevant precedents.

In addition, the panel misapplied, because it seems to have misunderstood, Lemon’s “no excessive entanglement” command, which exists to focus courts’ attention on the establishment clause’s historical heartland concern, that is, official intrusion into matters of religious doctrine, worship, polity and personnel. The lower court, however, announced that because the memorial “aggrandizes [sic] the Latin cross” and “excludes all other religious tenets” it therefore creates “excessive entanglement.” However, and putting aside the strange claim that the display of one religious tradition’s symbol “excludes” the “tenets” of another, this is simply a repackaging of the endorsement objection.

But again, correcting these mistakes would treat the symptoms, not the disease, and – even in this era of a small and shrinking court docket – is hardly worth the candle. Minimalism and incrementalism are well and good, but so are candor, clarity and coherence. As “Survivor” fans know, there are times for “big moves.” Let me suggest two.

First, the justices should reject the notion that mere “unwelcome contact” with a religious symbol or display constitutes an “injury” sufficient to satisfy the Constitution’s “standing” requirement. As Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit has explained, “offense at the behavior of the government” does not create standing. For too long – at least since Flast v. Cohen in 1968 – courts have indulged in a kind of “Establishment Clause exceptionalism” and allowed what one court called allegations of “squishy ‘psychological’ injury” to trump the important separation-of-powers values that standing rules exist to vindicate. Longstanding monuments and displays that incorporate religious symbols should not be uniquely vulnerable to a heckler’s veto.

Next, the Lemon “test” has long ceased to function as a test and instead now serves as an invitation (and an excuse) for judges to label their idiosyncratic impressions as the exercise of “legal judgment” and their prepossessions as the conclusions of the well-informed “reasonable observer.” It has not been applied — almost certainly because the justices realize it would produce unjustifiable and unwanted results — in decisions involving Ten Commandments monuments, legislative prayers, the Pledge of Allegiance and so on. It asks judges not only to ask questions they are not well equipped to answer but also to give disingenuous, jury-rigged answers to the questions they ask. It should be dramatically revised, if not abandoned altogether and replaced.

We should ask and expect of judge-made doctrines that they are workable, that they respect the nature of and limits on the judicial role in a democracy, and that they generate outcomes that are consistent not so much with this or that abstract “principle” that the religion clauses are said to embody or reflect but instead with – as the court appreciated in Town of Greece – the traditions, practices, and history of the political community that enacted and is constrained by them. Lemon does not measure up to these expectations.

Lemon’s “secular purpose” requirement is almost never outcome-determinative and, in any event, it is not clear why courts should invalidate the actions of politically accountable officials based on speculations about their motives or aims. The better course is to evaluate what the government has actually done, that is, to focus on objective outputs rather than subjective inputs. Scholars in many disciplines are increasingly sensitive to the fact that “secular” is a complicated and contested term. Whether a law’s assumed or assigned “purpose” is sufficiently “secular” to permit its enactment is a question that legislators, and voters, can answer as well as, and more legitimately than, judges. A rule against “excessive entanglement” is well-grounded in history and, correctly understood, appropriately keeps political authorities in their lane. As we saw in the Supreme Court’s unanimous Hosanna-Tabor v. Equal Employment Opportunity Commission ruling, though, the Lemon “test” is not needed – indeed, it was not even mentioned – to safeguard the rights of religious communities to choose their teachers and teachings or to prevent government interference in religious affairs. After decades of conflicting and confusing attempts to identify the indirect, religion-advancing “effects” of various religion-neutral funding programs, the court seems to have settled on the view that, as Professor Eugene Volokh once put it, “equal treatment is not establishment.” And, as for the no-endorsement “refinement” of the test, Professor Steven Smith is (and has long been) right: “As two-plus decades of experience attest, the doctrine cannot work as contemplated, and can only aggravate the problem its proponents want to address – namely, political division and alienation caused by religion. There comes a time when futility should be conceded.” That time has come.

Religion-and-public-life questions are important and (sometimes) hard. We (sometimes) disagree about these questions because they matter. Often, answering them requires balancing and trade-offs, because there are multiple values at stake, and in tension. And so, this side of heaven anyway, why isn’t the best way to answer them not through ahistorical judicial ruminations on symbols’ all-things-considered communicative content or psychological impact but instead through politics and the practice of civic friendship, with an appropriate respect for the traditions we inhabit and inherit?

Recommended Citation: Richard Garnett, Symposium: The end of a walking dead doctrine?, SCOTUSblog (Dec. 11, 2018, 1:03 PM),