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Symposium: Three establishment clause paths

Luke Goodrich is Vice President and Senior Counsel at The Becket Fund for Religious Liberty, which filed a cert-stage amicus brief in support of the petitioners in The American Legion v. American Humanist Association.

The most interesting thing about the Maryland Peace Cross case won’t be who wins. (The Supreme Court will almost certainly uphold the cross.) The interesting part will be which path the court takes to get there.

There are three main possibilities: the “Lemon test,” a historical approach, or a punt. Which path the court takes will have profound implications for the relationship between church and state.

The path of Lemon

The most infamous path comes from Lemon v. Kurtzman. Lemon prohibits any government action that (1) lacks a secular purpose, (2) has the primary effect of “endorsing” religion, or (3) excessively entangles the government in religion. If the government’s action does any of these things, it violates the establishment clause.

The Lemon test is simple to say, but hard to apply — mainly because it is so subjective. Judges must imagine how a fictional “reasonable observer” would perceive a monument like the Maryland Peace Cross, and then decide whether the reasonable observer would think the government is “endorsing” religion by displaying the cross.

Because the “reasonable observer” is a judicial fiction, the test is easy to manipulate. If a judge — consciously or subconsciously — wants to uphold the cross, she can say the reasonable observer would know that the Peace Cross stands near other war memorials, has the words “Valor,” “Courage,” and “Devotion” inscribed on its base, has a plaque commemorating 49 local heroes who died in World War I, and has always been perceived as a war memorial — as the district judge and Chief Judge Roger Gregory held in this case.

If a judge wants to strike down the cross, he can say the reasonable observer wouldn’t be able to stop and read the commemorative plaque, because the cross is in the middle of a busy intersection and the plaque is obscured by bushes. But the observer would see a 40-foot tall cross towering over government property and would naturally conclude the government must favor Christianity — as two of the three 4th Circuit judges concluded here.

This test doesn’t constrain judges in any meaningful way. Rather, it invites them to project their own preferences onto a fictional “reasonable observer” — who then ends up looking like whichever judge holds the deciding vote. As Judge Frank Easterbrook has said, under Lemon, “a judge can do little but announce his gestalt.”

The path of history

The second path the Supreme Court could take is rooted in the history of the establishment clause. Under this approach, the government is forbidden from taking any action that constitutes an “establishment of religion” as that term was historically understood.

This is not a new approach. The Supreme Court’s earliest establishment clause decisions — such as Everson v. Board of Education of the Township of Ewing, McGowan v. Maryland and Walz v. Tax Commission of the City of New York — self-consciously grounded themselves in the historical meaning of the establishment clause. More recent cases, too — like Van Orden v. Perry (in a plurality) and Town of Greece v. Galloway — have rejected Lemon in favor of a historical approach. In Town of Greece, the court even said “the Establishment Clause must be interpreted by reference to historical practices and understandings.”

How does this historical approach work in practice?

Rather than asking what a fictional “reasonable observer” would think of the government’s action, the court asks whether the government’s actions share one of the historic characteristics of an “establishment of religion” at the time of the founding.

This is an objective inquiry, and it is not particularly controversial. There is widespread agreement on what constituted an “establishment of religion” at the time of the founding. Nine of the 13 colonies had one, as did Great Britain. As Professor Michael McConnell has explained, an “establishment of religion” had six common elements:

  1. Government control over the doctrine and personnel of the established church — including laws regulating who could preach and how worship would be conducted;
  2. Mandatory attendance in the established church — including laws imposing penalties for failing to attend church services;
  3. Government financial support of the established church — including taxes and land grants exclusively for the support of the church;
  4. Restrictions on worship in dissenting churches — including laws imposing penalties for preaching outside the established church;
  5. Restrictions on political participation by dissenters — including laws barring dissenters from voting or holding political office;
  6. Use of the established church to carry out civil functions — including laws giving the church authority to keep public records or prosecute moral offenses.

Importantly, many of the outcomes of the Supreme Court’s establishment clause cases already track these six historic characteristics. Take school prayer. In Engel v. Vitale, government officials composed a prayer that all public-school children were expected to recite. Under a historical approach, this violates the establishment clause because the government has used its coercive power to control religious doctrine (by composing an official prayer) and compel religious worship (by pressuring children to recite it).

Many other cases would also come out of the same way — such as Larkin v. Grendel’s Den Inc. and Kiryas Joel v. Grumet (which involved assignment of civil functions to religious authorities), Torcaso v. Watkins (which involved restrictions on political participation by dissenters), and Hosanna-Tabor v. Equal Employment Opportunity Commission (which involved government control over the personnel of a church).

But a passive monument like the Maryland Peace Cross is not an establishment of religion. It doesn’t control religious doctrine or compel religious observance. It doesn’t send any money to a religious institution or impose any penalty on dissenters. It just sits there. Anyone who dislikes it is free to ignore it.

Not surprisingly, then, there is “lots of history,” as Judge Kevin Newsom said in another cross case pending at the Supreme Court, indicating that governments at the founding erected monuments with religious content — including crosses — and this was never considered to be an establishment of religion. Although the government need not produce this sort of evidence to prevail under the historical approach, such evidence makes passive monuments an easy case.

The path of punting

The third path is to punt. Sadly, the Supreme Court has punted in many establishment clause cases over the last two decades. Often, lower courts have relied on Lemon but the Supreme Court has reached its decision without ever mentioning it. In fact, the Court has not relied on Lemon in an establishment clause case since 2005.

But for local governments and lower courts, the Supreme Court’s silence on Lemon is cold comfort, because Lemon remains controlling in lower courts until the court says otherwise. As a practical matter, then, the path of punting is the path of Lemon.

Why the path of history is best

There are several reasons to prefer the path of history over the path of Lemon.

First, a historical approach offers an objective basis for resolving establishment clause claims. Because the historical elements of “an establishment of religion” are well-settled, a historical approach yields consistent, objective results. As with other parts of the Bill of Rights, history provides real grounding for legal doctrine. Lemon, by contrast, is essentially a Rorschach test, offering nothing more than “I know it when I see it.”

Second, the path of history reduces needless conflict over passive religious displays. Does anyone (other than church–state militants) relish the annual “wars” over local Christmas and Hanukkah displays? Love them or hate them, these displays aren’t harming anyone. Yet Lemon makes every display a potential flashpoint in a never-ending culture war. Anyone who feels offended can bring a lawsuit, and the lawsuit then holds far more meaning than the underlying display ever did. A ruling permitting the display is taken as government “endorsement” of religion, while a ruling removing the display is taken as government “hostility” toward religion. The litigation itself becomes the occasion for ill-will across religious lines, with each side caring more about the court’s decision than the challenged display. A historical approach would put an end to this needless Kulturkampf.

Finally, a historical approach keeps government and religion in their proper spheres. The path of history rightly forbids government from attempting to control religious doctrine, compel religious observance, or provide exclusive funding for religious institutions. Separation of church and state — rightly understood — is vital.

But a historical approach also avoids needlessly scrubbing religion from the public square, along with the message of hostility that sends. Religion is a fundamental aspect of human culture, and the government routinely recognizes the importance of other aspects of our culture, including race, ethnicity, sex, art, and much more. So it is only natural for the government to recognize that religion is also an important aspect of our culture — as even the most secularist European governments do.

In short, the path of history avoids both government promotion of religion and government hostility toward religion. That is a result almost everyone can support — even if it leaves a gap in December cable-news programming.

Recommended Citation: Luke Goodrich, Symposium: Three establishment clause paths, SCOTUSblog (Dec. 12, 2018, 3:13 PM),