Amicus Curiae Brief — The American Legion, et al., Petitioners v. American Humanist Association, et al.

Supreme Court briefDec 21, 2018

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Nos. 17-1717, 18-18

IN THE

Supreme Court of the United States

THE AMERICAN LEGION, ET AL.

Petitioners,

AMERICAN HUMANIST ASSOCIATION, ET AL.,

Respondents.

MARYLAND-NATIONAL CAPITAL PARK AND

PLANNING COMMISSION

Petitioner,

AMERICAN HUMANIST ASSOCIATION, ET AL.,

Respondents.

On Writs Of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF FOR AMICI CURIAE CITIZENS UNITED

AND CITIZENS UNITED FOUNDATION IN

SUPPORT OF PETITIONERS

MICHAEL BOOS

General Counsel

CITIZENS UNITED

1006 Pennsylvania Ave., S.E.

Washington, D.C. 20003

(202) 547-5420

MATTHEW D. MCGILL

Counsel of Record

ANDREW G. I. KILBERG

TRAVIS S. ANDREWS

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

mmcgill@gibsondunn.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ............................................................... 3

THE FOURTH CIRCUIT’S RULING WRONGLY

PROHIBITS GOVERNMENT ASSISTANCE FOR

PRESERVATION OF HISTORIC RELIGIOUS

SITES. ..................................................................... 3

II. THE LEMON TEST SHOULD FINALLY BE LAID

TO REST................................................................ 15

The Court Should Restore The

Original Meaning Of The

Establishment Clause. ................................. 15

Stare Decisis Is No Obstacle To Setting

Lemon Aside. ................................................ 21

III. THE ESTABLISHMENT CLAUSE DOES NOT

APPLY TO THE STATES. ........................................ 25

The Establishment Clause Should Not

Be Incorporated Because It Is A

Federalism Provision.................................... 26

Stare Decisis Should Not Prevent

Correcting The Incorporation Mistake. ....... 30

CONCLUSION .......................................................... 34

TABLE OF AUTHORITIES

Page

Cases

Agostini v. Felton,

521 U.S. 203 (1997) .............................................. 21

Bd. of Educ. of Kiryas Joel Vill. Sch.

Dist. v. Grumet,

512 U.S. 687 (1994) .............................................. 16

Bowen v. Kendrick,

487 U.S. 589 (1988) .............................................. 20

Cantwell v. Connecticut,

310 U.S. 296 (1940) .............................................. 32

Capitol Square Review & Advisory Bd.

v. Pinette,

515 U.S. 753 (1995) .............................................. 19

Church of Lukumi Babalu Aye, Inc. v.

Hialeah,

508 U.S. 520 (1993) ........................................ 17, 32

Comm. for Pub. Educ. & Religious

Liberty v. Regan,

444 U.S. 646 (1980) .............................................. 22

Cty. of Allegheny v. ACLU Greater

Pittsburgh Chapter,

592 U.S. 573 (1989) .................................. 18, 21, 22

Cutter v. Wilkinson,

544 U.S. 709 (2005) .................................. 18, 24, 33

iii

Edwards v. Aguillard,

482 U.S. 578 (1987) .................................. 17, 18, 22

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) .......................................... passim

Emp’t Div., Dep’t of Human Res. of Ore.

v. Smith,

494 U.S. 872 (1990) .............................................. 33

Everson v. Bd. of Educ. of Ewing,

330 U.S. 1 (1947) .............................................. 2, 31

Gideon v. Wainright,

372 U.S. 335 (1963) .............................................. 22

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) .................................................. 4

Herring v. United States,

555 U.S. 135 (2009) .............................................. 26

Janus v. Am. Fed’n of State, Cty., &

Mun. Emps., Council 31,

138 S. Ct. 2448 (2018) ........................ 21, 22, 24, 31

Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist.,

508 U.S. 384 (1993) .................................. 23, 24, 25

Lee v. Weisman,

505 U.S. 577 (1992) .............................................. 16

Lemon v. Kurtzman,

403 U.S. 602 (1971) ...................................... passim

Lynch v. Donnelly,

465 U.S. 668 (1984) .............................................. 25

Malloy v. Hogan,

378 U.S. 1 (1964) .................................................. 26

Masterpiece Cakeshop, Ltd. v. Colo.

Civil Rights Comm’n,

138 S. Ct. 1719 (2018) .......................................... 32

McCreary Cty., Ky. v. ACLU of Ky.,

545 U.S. 844 (2005) ...................................... passim

McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) ........................................ 26, 31

Mellen v. Bunting,

327 F.3d 355 (4th Cir. 2003) .................................. 4

Rosenberger v. Rector & Visitors of

Univ. of Va.,

515 U.S. 819 (1995) .................................. 18, 20, 21

Santa Fe. Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) .............................................. 25

Sch. Dist. of Abingdon Twp. v.

Schempp,

374 U.S. 203 (1963) ........................................ 27, 31

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018) .................................... 23, 24

Texas Monthly, Inc. v. Bullock,

489 U.S. 1 (1989) .................................................. 18

Town of Greece, N.Y. v. Galloway,

572 U.S. 565 (2014) ...................................... passim

United States v. Lopez,

514 U.S. 549 (1995) .............................................. 29

Van Orden v. Perry,

545 U.S. 677 (2005) ............................ 19, 24, 25, 33

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ........................................ 32, 33

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ........................................ 20, 32

Constitutional Provisions and Statutes

54 U.S.C. § 308902 ...................................................... 7

54 U.S.C. § 308903 ...................................................... 7

U.S. Const., amend. I ........................................ passim

U.S. Const., amend. IV .............................................. 26

U.S. Const., amend. X ......................................... 27, 29

U.S. Const., amend. XIV ............................... 26, 32, 33

U.S. Const., art. IV, § 3, cl. 1 .................................... 28

Va. Code § 1-510 ........................................................ 33

Other Authorities

16th Street Baptist Church, Where

Jesus Christ Is the Main Attraction!,

https://tinyurl.com/y7xtcocd/. .............................. 13

About the Friends & the Friendship

Fund, Friends of the Old Ship

Meeting House, 2011,

https://tinyurl.com/ydyxfuez .................................. 9

About Old North, The Old North

Church & Historic Site,

https://tinyurl.com/y9dxbemm ............................... 8

Akhil Reed Amar, The Bill of Rights

(1998) ........................................................ 27, 30, 33

Phil Anderson, North Topeka Church

Receives $231,000 Grant from

National Park Service, Topeka Cap.J. (Feb. 19, 2017),

https://tinyurl.com/y9gup5mg ............................. 14

Channing History, Channing Mem’l

Church, 2017,

https://tinyurl.com/yd99v6pu .............................. 11

Jesse H. Choper, The Religion Clauses

of the First Amendment: Reconciling

the Conflict, 41 U. Pitt. L. Rev. 673

(1980) .................................................................... 22

vii

Civil Rights Grant Program: African

American Civil Rights Grants, Nat’l

Park Serv.,

https://tinyurl.com/ycagavjp .......................... 13, 14

Civil Rights Grant Program:

Application Information, Nat’l Park

Serv., https://tinyurl.com/y6urhh3v .................... 12

Daniel O. Conkle, Toward a General

Theory of the Establishment Clause,

82 Nw. Univ. L. Rev. 1113 (1988) ........................ 27

Donald L. Drakeman, Church, State,

and Original Intent (2010)............................. 15, 28

Hasan Dudar, Trumps Take Heat for

Not Reciting Apostles’ Creed at

George H.W. Bush Funeral, USA

Today (Dec. 6, 2018) ............................................. 19

First Parish, Hingham – Old Ship

Church – Unitarian Universalist,

https://tinyurl.com/yaj2pbtr ................................. 10

Bryan A. Garner et al., The Law of

Judicial Precedent (2016) .................................... 21

Frederick Mark Gedicks, Incorporation

of the Establishment Clause Against

the States: A Logical, Textual, and

Historical Account, 88 Ind. L.J. 669

(2013) .............................................................. 28, 29

viii

George Washington and His Letter to the

Jews of Newport, Touro Synagogue,

https://tinyurl.com/jr76hep .................................. 12

The History and People of Christ

Church, Christ Church,

https://tinyurl.com/ybg479pj .................................. 9

History & Visitor Program, United First

Parish Church (Unitarian),

https://tinyurl.com/y75upr5o ................................. 9

La Purisma-Socorro Mission, Catholic

Diocese of El Paso,

https://tinyurl.com/ybbxfnm9 .............................. 11

Kurt T. Lash, The Second Adoption of

the Establishment Clause: The Rise

of the Non-Establishment Principle,

27 Ariz. St. L. J. 1085 (1995) ............................... 30

Leonard W. Levy, The Establishment

Clause: Religion & the First

Amendment (1986) ............................................... 16

Lawrence Lindner, Classic New

England: Five for the Road, Wash.

Post (Apr. 22, 2007)................................................ 9

Longfellow’s Poem, “Paul Revere’s Ride,”

The Old North Church & Historic

Site, https://tinyurl.com/y7z5t4j9 .......................... 8

Lower East Side Jewish History,

Museum at Eldridge Street,

https://tinyurl.com/y7xvr35z................................ 12

Michael W. McConnell, The Origins and

Historical Understanding of Free

Exercise of Religion, 103 Harv. L.

Rev. 1409 (1990) ................................................... 32

Mother Bethel African Methodist

Episcopal (AME) Church, Visit

Phila., https://tinyurl.com/y7u6lcql ..................... 13

The Museum at Eldridge Street,

Museum at Eldridge Street,

https://tinyurl.com/yaxqjcdb ................................ 12

Our History, Historic St. Luke’s Church,

https://tinyurl.com/y8bh33hx .............................. 10

Prayer Services, Touro Synagogue, 2018,

https://tinyurl.com/y86ahkp5 .............................. 12

Proclaiming Peace, Wash. Nat’l

Cathedral, Mar. 23, 2016,

https://tinyurl.com/yc2ufdh2 ............................... 10

Jessica Ravitz, Siblings of the Bombing:

Remembering Birmingham Church

Blast 50 Years On, CNN (Sept. 17,

2013), https://tinyurl.com/oylam55 ..................... 13

Julie Rose, St. Mary in the Mountains

Catholic Church, Online Nev.

Encyclopedia, Mar. 20, 2009,

https://tinyurl.com/ycbfz4he ................................ 11

Saint Paul’s Church: History & Culture,

Nat’l Park Serv., Feb. 26, 2015,

https://tinyurl.com/ya6kqwys; ............................... 6

San Antonio Missions, Nat’l Park Serv.,

Nov. 13, 2018,

https://tinyurl.com/my3pnlg .................................. 7

San Antonio Missions: Church

Information, Nat’l Park Serv., Oct.

24, 2018,

https://tinyurl.com/y93bkgdj.................................. 7

San Antonio Missions: Mission San

José, Nat’l Park Serv., June 18,

2018, https://tinyurl.com/ybbv7tld ........................ 7

San Antonio Missions: Park Statistics,

Nat’l Park Serv., Feb. 24, 2015,

https://tinyurl.com/ycgcx757 .................................. 7

Save America’s Treasures, Am.

Architectural Found.,

https://tinyurl.com/ya64dusw ................................ 8

Save America’s Treasures Grants, Nat’l

Park Serv.,

https://tinyurl.com/ycya8jnz .............................. 7, 8

Save America’s Treasures –

Preservation, Grants.gov, Oct. 15,

2018, https://tinyurl.com/ybgosh56 ....................... 8

Richard Simon, Proposed Aid for

Washington National Cathedral

Draws Criticism, L.A. Times, (Oct.

25, 2011),

https://tinyurl.com/ybtavuko ............................... 10

Steven D. Smith, Foreordained Failure

(1995) .................................................................... 29

Spanish Missions: Socorro Mission,

Nat’l Park Serv., Apr. 15, 2016,

https://tinyurl.com/ybkcv2zt ................................ 11

John H. Sprinkle, Jr., Crafting

Preservation Criteria: The National

American Historic Preservation

(2014) ...................................................................... 6

Timeline, Wash. Nat’l Cathedral,

https://tinyurl.com/lxwo8l5 .................................. 10

Tumacácori: La Fiesta de Tumacácori,

Nat’l Park Serv., Nov. 5, 2018,

https://tinyurl.com/y7xqycdw ................................ 6

Tumacácori: Missions, Nat’l Park Serv.,

Feb. 24, 2015,

https://tinyurl.com/y7opfjyx ................................... 6

Tumacácori: Preservation, Nat’l Park

Serv., Mar. 16, 2018,

https://tinyurl.com/ybvz8fua .................................. 7

Tumacácori: San José de Tumacácori,

Nat’l Park Serv., June 20, 2015,

https://tinyurl.com/yc84yldw ................................. 6

Worship / Bible Study, Mother Bethel

African Methodist Episcopal Church,

https://tinyurl.com/y7atjyur................................. 13

INTERESTS OF AMICI CURIAE*

Citizens United and Citizens United Foundation

are dedicated to restoring government to the people

through a commitment to limited government, federalism, and free enterprise. Amici firmly believe that

religious liberty and recognition of God and the values

that lie at the heart of Judeo-Christian tradition are

critical attributes of our constitutional structure and

our continued national health. Amici regularly participate as litigants and amici in important cases in

which these fundamental principles are at stake.

Citizens United is a nonprofit social welfare organization, exempt from federal income tax under Internal Revenue Code section 501(c)(4). Citizens

United Foundation is a nonprofit, educational, legal,

and religious organization, exempt from federal income tax under Internal Revenue Code section

501(c)(3).

* Pursuant to Supreme Court Rule 37.6, counsel for amici curiae states that no counsel for a party authored this brief in whole

or in part, and no person or entity other than amici curiae, their

members, or their counsel made a monetary contribution intended to fund this brief’s preparation or submission. The parties have filed blanket consents to the filing of this brief and their

letters of consent are on file with the Clerk.

SUMMARY OF THE ARGUMENT

There they go again. No matter how many Justices make it plain in separate opinions that Lemon v.

Kurtzman, 403 U.S. 602 (1971), does not provide a historically correct or even useful standard for adjudicating Establishment Clause claims, the lower courts

keep applying it. The decision of the Fourth Circuit

panel below, in particular, spells disaster not just for

war memorials and other traditional, patently inoffensive uses of the Latin cross all across this country,

but also (as described herein) for government maintenance of and financial support for the preservation of

historically important religious sites. Decisions like

the opinion below are possible, in part, because this

Court’s Establishment Clause jurisprudence is inscrutable, with each new case seemingly bringing forth a

new and ever-more nuanced view as to what constitutes an impermissible establishment of religion.

Enough is enough. The Court should end the uncertainty and unpredictability that plagues Establishment Clause jurisprudence. Specifically, the Court

should end the cycle of diminishment and subsequent

revitalization of the Lemon test and restore the original meaning of the Establishment Clause, which prohibited actual coercion of religious practice, belief, or

support—and nothing else. Doing so would bring

some measure of clarity to an area of law that has long

been in need of clear and firm reorientation. The

Court could further decrease the frequency of lower

court misapplication of the Establishment Clause by

overruling Everson v. Board of Education of Ewing,

330 U.S. 1 (1947), and holding that the Clause is not

incorporated against the States.

ARGUMENT

THE FOURTH CIRCUIT’S RULING WRONGLY

PROHIBITS GOVERNMENT ASSISTANCE FOR

PRESERVATION OF HISTORIC RELIGIOUS SITES.

The Fourth Circuit’s application of Lemon effectively dictates the removal, destruction, or defacement of any prominent religious symbol or structure

that receives more than de minimis government financial support, thereby endangering efforts to preserve historic religious sites throughout the country.

Under Lemon, (1) the government’s “purpose”

must be “secular”; (2) the government action’s “principal or primary effect must be one that neither advances nor inhibits religion”; and (3) the government

action “must not foster an excessive government entanglement with religion.” 403 U.S. at 612–13 (quotation marks omitted). The panel majority below emphasized that “a violation of even one prong of Lemon

results in a violation of the Establishment Clause.”

Pet. App. 15a–16a; see also Pet. App. 28a (each violation of a Lemon prong “provides an alternative indicator of the Cross’s unconstitutionality”). But see

McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky.,

545 U.S. 844, 859 n.10 (2005) (stating “that Establishment Clause doctrine lacks the comfort of categorical

absolutes” and allowing that a “governmental action

[may be] legitimate even where its manifest purpose

was presumably religious”).1

The panel majority acknowledged the Commission’s secular purpose in maintaining the Peace Cross.

1 Every citation of the petition appendix refers to the appendix

of American Legion Petitioners.

Pet. App. 16a. But even a purpose that is appropriate

(from the Fourth Circuit’s perspective) would not save

a public display of a religious symbol or structure: “‘irrespective of government’s actual purpose,’” the display is unconstitutional under the effect prong if it “‘in

fact conveys a message of endorsement or disapproval

of religion.’” Pet. App. 17a (quoting Mellen v. Bunting,

327 F.3d 355, 374 (4th Cir. 2003)). That test, the

panel explained, must be applied from the perspective

of a “‘reasonable observer,’” who is “‘aware of the history and context of the community and forum in which

the religious speech takes place.’” Pet. App. 16a–17a

(quoting Good News Club v. Milford Cent. Sch., 533

U.S. 98, 119 (2001)).

Such a reasonable observer, the panel majority

determined, would believe that the government was

endorsing Christianity. The cross is a Christian symbol, a fact not altered by the cross’s use in generic war

memorials. Pet. App. 17a–20a. And its large “size and

prominence” “overwhelm” the plaque that lists the local soldiers who died in World War I and the other

“secular [elements],” such as the inscription of the

words “valor,” “endurance,” “courage,” and “devotion”

on the base of the Cross. Pet. App. 21a–22a. The

plaque is too weathered and pedestrian access to the

Cross is too difficult for these elements to neutralize

the Cross’s Christian symbolism, the panel majority

reasoned. Pet. App. 22a–24a. They found that the

American Legion’s symbol, which is imprinted at the

center of the Cross, does not help defray the Cross’s

religiosity because the symbol also is “badly weathered” and, besides, the American Legion is “affiliat[ed]

with Christianity.” Pet. App. 23a. That the Cross had

only “a scattered history of religious use” (in reality,

three Sunday services in a single month in 1931), “has

primarily hosted veteran-focused ceremonies,” and

was not built using government funds did little for the

panel majority, because “the initial donors to the memorial fund signed a pledge professing a belief in God,

and the Cross has been the scene of Christian activities.” Pet. App. 20a.

According to the panel majority, display of the

Cross is also unconstitutional because “there is excessive religious entanglement . . . for two reasons.” Pet.

App. 27a. Simply “displaying the Cross” such that a

“reasonable observer” would believe the Commission

endorses Christianity entangles government with religion. Pet. App. 28a. (That is, a violation of the second Lemon prong is per se a violation of the third

prong, too.) Separately, even “de minimis government

spending” to support the Cross is an unconstitutional

entanglement. Id.

As explained by petitioners and other amici in the

briefs in this case, war memorials in Arlington National Cemetery and across the country would be unconstitutional under the Fourth Circuit’s reasoning.

See, e.g., Br. of Amici Curiae State of W. Va., 27 Other

States, and Governor of Kentucky in Support of Petitioners 12–27 (July 27, 2018). As Judge Niemeyer

foresaw in his dissent from the denial of rehearing en

banc, the panel decision “puts at risk hundreds of

monuments with similar symbols standing on public

grounds across the country, such as those in nearby

Arlington National Cemetery.” Pet. App. 97a.

In fact, the reasoning of the decision below sweeps

far more than war memorials into Lemon’s trash bin.

The federal government’s National Park Service

(“NPS”), in particular, has supported numerous historic religious sites across the country and even itself

owns and/or operates several buildings of religious

significance. These sites would almost certainly fail

the Fourth Circuit’s reasonable observer standard because they are identifiably religious, and the government’s assistance to preserve even private displays

would very likely qualify as an unconstitutional entanglement.

Examples are everywhere. To begin, the NPS

owns and operates St. Paul’s Church National

Historic Site in Mount Vernon, New York. One of the

oldest Episcopal parishes in New York, the church

was used for regular worship services until the late

1970s, after which it was transferred to the NPS,

which now runs it as a park. See Saint Paul’s Church:

History & Culture, NPS, Feb. 26, 2015,

https://tinyurl.com/ya6kqwys; John H. Sprinkle, Jr.,

Crafting Preservation Criteria: The National Register

of Historic Places and American Historic Preservation

138 (2014).

The NPS also owns and operates Tumacácori, a

National Historic Park in Arizona, which includes

three separate Spanish mission sites. Tumacácori:

Missions,

NPS,

Feb.

24,

2015,

https://tinyurl.com/y7opfjyx. One, San José de Tumacácori

(the park’s namesake), is immediately identifiable as

a religious building, complete with a cross atop the

front façade. Tumacácori: San José de Tumacácori,

NPS, June 20, 2015, https://tinyurl.com/yc84yldw.

Each year on the first Sunday in December, a Mass is

performed in front of the church as part of a fiesta celebrating the cultures associated with the local area.

Tumacácori: La Fiesta de Tumacácori, NPS, Nov. 5,

2018, https://tinyurl.com/y7xqycdw. An estimated

$20 million has been spent on preserving the missions

since 1917. Tumacácori: Preservation, NPS, Mar. 16,

2018, https://tinyurl.com/ybvz8fua.

Similarly, the NPS manages a historical park consisting of Spanish missions in San Antonio. San Antonio Missions, NPS, Nov. 13, 2018, https://tinyurl.com/my3pnlg. Four missions in the park have

regular church services. See San Antonio Missions:

Church Information, NPS, Oct. 24, 2018, https://tinyurl.com/y93bkgdj. Although the NPS is not currently responsible for the preservation of the mission

buildings, it was the Works Progress Administration

that “reconstructed” the Mission San José in the

1930s. San Antonio Missions: Mission San José,

NPS, June 18, 2018, https://tinyurl.com/ybbv7tld.

The NPS reports that $3.2 million in federal funds are

appropriated for the park’s operating budget. San Antonio Missions: Park Statistics, NPS, Feb. 24, 2015,

https://tinyurl.com/ycgcx757.

Separate from the park system itself is the Save

America’s Treasures grant program, under which the

NPS, along with other agencies such as the National

Endowment for the Arts, provides funds “for projects

to preserve nationally significant collections and historic property.” 54 U.S.C. § 308902. A property is eligible for a grant if is “listed on the national Register

of Historic Places at the national level of significance”

or is “designated as a National Historic Landmark.”

Id. § 308903(c)(3). The NPS encourages “[h]istoric

properties and collections associated with active religious organizations” to apply for grants. Save America’s

Treasures

Grants,

NPS,

https://tinyurl.com/ycya8jnz.

Through this program, the NPS has given millions

of dollars for projects at religious sites across the

country, many of which are still used today for regular

religious services.2

The grants have supported

projects at a number of historic churches from the

colonial period. For example:



The Old North Foundation received

$317,000 for the Old North Church in Boston, Massachusetts. This historic Episcopal

church is where, at the order of Paul Revere,

lanterns were lit to signal the British army’s

movement during the nascent days of the

Revolutionary War. See About Old North,

The Old North Church & Historic Site,

https://tinyurl.com/y9dxbemm. The church

is immortalized in Henry Wadsworth Longfellow’s poem, Paul Revere’s Ride: “He said

to his friend, ‘If the British march / By land

or sea from the town to-night, / Hang a lantern aloft in the belfry-arch / Of the NorthChurch-tower, as a signal-light, – / One if by

land, and two if by sea; / And I on the opposite shore will be.’” Longfellow’s Poem, “Paul

2 Save America’s Treasures grants awarded between 1999 and

2010 are catalogued in an interactive online map compiled by the

American Architectural Foundation, and all amounts and receiving entities of Save America’s Treasures grants herein are taken

from this map. See Treasure Map: Mapping the Impact of Save

America’s Treasures, Am. Architectural Found., https://tinyurl.com/ya64dusw. The program has recently been revitalized.

See, e.g., Save America’s Treasures – Preservation,

Grants.gov, Oct. 15, 2018, https://tinyurl.com/ybgosh56; Save

America’s Treasures Grants, NPS, https://tinyurl.com/ycya8jnz.

Revere’s Ride,” The Old North Church & Historic Site, https://tinyurl.com/y7z5t4j9.



Christ Church in Philadelphia, Pennsylvania, which was founded in 1695, received

$350,000. The building dates to 1744 and

hosts regular Episcopal services. The History and People of Christ Church, Christ

Church, https://tinyurl.com/ybg479pj.



The United First Parish Church in Quincy,

Massachusetts, which is home to an active

Unitarian Universalist congregation, received $100,000. The church is known as

the “Church of the Presidents” because it is

the burial place of Presidents John Adams

and John Quincy Adams and their wives,

First Ladies Abigail Adams and Louisa

Catherine Adams. The congregation dates

back to 1636, and the current building was

completed in 1828. History & Visitor Program, United First Parish Church (Unitarian), https://tinyurl.com/y75upr5o.



The First Parish in Hingham received

$300,000 for the Old Ship Meeting House in

Hingham, Massachusetts, which dates back

to 1681 and “is the oldest church in continuous use as a house of worship in North America.” Lawrence Lindner, Classic New England: Five for the Road, Wash. Post, (Apr. 22,

2007), https://tinyurl.com/y75j4fho; see also

About the Friends & the Friendship Fund,

Friends of the Old Ship Meeting House, 2011,

https://tinyurl.com/ydyxfuez. The congregation is Unitarian Universalist. First Parish,

Hingham – Old Ship Church – Unitarian

Universalist, https://tinyurl.com/yaj2pbtr.



Historic St. Luke’s Church Restoration Inc.

received $250,000 for St. Luke’s Church in

Smithfield, Virginia, which was completed

in the 1680s and is the oldest church building in Virginia. Our History, Historic St.

Luke’s Church, https://tinyurl.com/y8bh33hx.

Other churches unassociated with colonial

English history have received large grants from the

Save America’s Treasures program. For example:



The Washington National Cathedral received $700,000, which it planned to put toward costs associated with repairing the

damage from the earthquake that rattled

D.C. in the summer of 2011. See Richard Simon, Proposed Aid for Washington National

Cathedral Draws Criticism, L.A. Times,

(Oct. 25, 2011), https://tinyurl.com/ybtavuko.

Construction on the Cathedral began in

1907 and was completed in 1990. Timeline,

Wash.

Nat’l

Cathedral,

https://tinyurl.com/lxwo8l5. Even before construction on the Cathedral began, President William McKinley attended the dedication of a

large Peace Cross on the Cathedral grounds.

See Proclaiming Peace, Wash. Nat’l Cathedral,

Mar.

23,

2016,

https://tinyurl.com/yc2ufdh2. In addition to holding

regular Episcopal services, the Cathedral often hosts services related to political events

or the deaths of important political figures.

Just this year, funeral services for President

George H. W. Bush and Senator John S.

McCain III were held at the Cathedral.



The Roman Catholic Diocese of Reno received $500,000 for St. Mary’s in the Mountains Catholic Church in Virginia City, Nevada, which was built in 1877. Julie Rose,

St. Mary in the Mountains Catholic Church,

Online Nev. Encyclopedia, Mar. 20, 2009,

https://tinyurl.com/ycbfz4he.



The Channing Memorial Church in Newport, Rhode Island, which is home to a Unitarian Universalist congregation, received

$440,000. The congregation dates back to

the mid-1830s.

See Channing History,

Channing Mem’l Church, 2017, https://tinyurl.com/yd99v6pu.



Historic Missions Restoration, Inc. received

$197,221 for the Socorro Mission in Socorro,

Texas, a Franciscan church which was built

in the mid-nineteenth century and continues to host regular Catholic services. See

Spanish Missions: Socorro Mission, NPS,

Apr. 15, 2016, https://tinyurl.com/ybkcv2zt;

La Purisma-Socorro Mission, Catholic Diocese of El Paso, https://tinyurl.com/ybbxfnm9.

Multiple Jewish synagogues have received

grants, as well. For example:



The Touro Synagogue Foundation, which

preserves the oldest synagogue in the

United States, received $375,000. The “Hebrew Congregation” in Newport, Rhode Island, that was the recipient of President

Washington’s 1790 letter on religious toleration called the Touro Synagogue home. See

George Washington and His Letter to the

Jews of Newport, Touro Synagogue,

https://tinyurl.com/jr76hep. A congregation

still worships at the synagogue. See Prayer

Services, Touro Synagogue, 2018, https://tinyurl.com/y86ahkp5.



The Eldridge Street Project received

$300,000. The Project restored the Eldridge

Street Synagogue, “the first great house of

worship built in America by Jewish immigrants from Eastern Europe.” The Museum

at Eldridge Street, Museum at Eldridge

Street, https://tinyurl.com/yaxqjcdb. The

synagogue is now a museum, but it also continues to host Shabbat and holiday services.

Lower East Side Jewish History, Museum at

Eldridge Street, https://tinyurl.com/y7xvr35z.

Important churches in African American history have received grants from both the Save America’s Treasures program and the separate African

American Civil Rights grants program. See Civil

Rights Grant Program: Application Information,

NPS, https://tinyurl.com/y6urhh3v. For example:



The Sixteenth Street Baptist Church in Birmingham, Alabama, which was built in 1911,

has received both Save America’s Treasures

and African American Civil Rights grants. It

was under the front steps of this church that

the Ku Klux Klan detonated a bomb on the

morning of September 15, 1963, killing four

young girls. The event “was a pivotal moment

that helped prod the passage of the Civil Rights

Act of 1964 and the Voting Rights Act of 1965.”

Jessica Ravitz, Siblings of the Bombing: Remembering Birmingham Church Blast 50 Years

On, CNN (Sept. 17, 2013), https://tinyurl.com/oylam55. The congregation is still

active today. See 16th Street Baptist Church,

Where Jesus Christ Is the Main Attraction!,

https://tinyurl.com/y7xtcocd/. The Church received $400,000 from the Save America’s Treasures program and $500,000 from the African

American Civil Rights program. See Civil

Rights Grant Program: African American Civil

Rights Grants, NPS, https://tinyurl.com/ycagavjp.



The Mother Bethel Foundation received a

$450,000 Save America’s Treasures grant

for the Mother Bethel A.M.E. Church in

Philadelphia, which is situated on the oldest

piece of property continuously owned by African Americans. See Mother Bethel African

Methodist Episcopal (AME) Church, Visit

Phila., https://tinyurl.com/y7u6lcql.

The

church holds regular worship services. Worship / Bible Study, Mother Bethel African

Methodist Episcopal Church, https://tinyurl.com/y7atjyur.



St. Mark’s A.M.E. Church of Topeka, Kansas Inc. received $231,804 from the African

American Civil Rights program.

Civil

Rights Grant Program: African American

Civil Rights Grants, NPS, https://tinyurl.com/ycagavjp. The church building is

more than 100 years old and hosts regular

services. Phil Anderson, North Topeka

Church Receives $231,000 Grant from National Park Service, Topeka Cap.-J. (Feb. 19,

2017), https://tinyurl.com/y9gup5mg; St.

Mark’s

AME

Church,

https://tinyurl.com/ydz4d2x9.

NPS maintenance of and grants to assist the

preservation of historic religious sites are very likely

unconstitutional under the Lemon test as it was

understood and deployed by the Fourth Circuit panel

majority. It is essentially irrelevant that the NPS has

a purpose other than promoting religion (the

preservation of important historic sites). The Fourth

Circuit recognized that there was a secular purpose

underlying the government’s maintenance of the

Peace Cross. See Pet. App. 16a (“The Commission

obtained the Cross for a secular reason—maintenance

of safety near a busy highway intersection. The

Commission also preserves the memorial to honor

World War I soldiers. Government preservation of a

significant war memorial is a legitimate secular

purpose.”). But the panel majority held display of the

Cross was unconstitutional anyway, because even “de

minimis government spending” to maintain it violates

the Constitution. Pet. App. 28a. Under the panel

majority’s reasoning, government assistance in the

preservation of historic religious sites, regardless of

denomination or beliefs—from the Tumacácori

mission in Arizona to the Touro Synagogue in

Newport, Rhode Island, and the Old North Church in

Boston to the Sixteenth Street Baptist Church in

Birmingham, Alabama—is unconstitutional. That

result is absurd, and should not be accepted.

II. THE LEMON TEST SHOULD FINALLY BE LAID TO

REST.

The Court should take this opportunity to once

and for all disavow the Lemon test.

The Court Should Restore

Original

Meaning

Establishment Clause.

The

Lemon’s three-part test is untethered to the Establishment Clause’s original meaning, which forbade

Congress from establishing a national religion or interfering with state or local establishments of religion.

Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 604–

05 (2014) (Thomas, J., concurring in part and concurring in the judgment) (summarizing historical evidence); Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1, 50 (2004) (Thomas, J., concurring in the judgment) (same); see also Donald L. Drakeman, Church,

State, and Original Intent 260 (2010) (concluding that

the Establishment Clause prohibits Congress “from

establishing a ‘national religion’”). Such establishments “necessarily involve actual legal coercion.”

Newdow, 542 U.S. at 52 (Thomas, J., concurring in the

judgment); see also Br. for Am. Legion Petr’s 25–40.3

3 A government also might establish “a religion by imbuing it

with governmental authority or by ‘delegat[ing]its civic authority

to a group chosen according to a religious criterion.’” Newdow,

Mere “[o]ffense, however, does not equate to coercion.”

Town of Greece, 572 U.S. at 589. Rather, “[t]he coercion that was a hallmark of historical establishments

of religion was coercion of religious orthodoxy and of

financial support by force of law and threat of penalty.”

Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J.,

dissenting); see Leonard W. Levy, The Establishment

Clause: Religion & the First Amendment 4–5 (1986)

(summarizing historical facets of establishments of religion). That is, governments used their “power in order to exact financial support of the church, compel

religious observance, or control religious doctrine.”

Town of Greece, 572 U.S. at 608 (Thomas, J., concurring in part and concurring in the judgment).

The Lemon test sweeps much more broadly. Under Lemon, (1) the government’s “purpose” must be

“secular”; (2) the government action’s “principal or

primary effect must be one that neither advances nor

inhibits religion”; and (3) the government action

“must not foster an excessive entanglement with religion.” 403 U.S. at 612–13 (quotation marks omitted).

None of these prongs bears any relation to the Establishment Clause, as properly understood.

The purpose prong, which invalidates government

actions taken with the “predominant purpose of advancing religion,” McCreary, 545 U.S. at 860, 863, falters on at least two grounds. First, it is a “questiona-

542 U.S. at 52 (Thomas, J., concurring in the judgment) (quoting

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S.

687, 698 (1994)). Public displays of religious symbols and government support for such displays do not implicate those other

potential routes to an Establishment Clause violation.

ble premise that [government action] can be invalidated under the Establishment Clause on the basis of

its motivation alone, without regard to its effects.”

Edwards v. Aguillard, 482 U.S. 578, 610 (1987)

(Scalia, J., dissenting). Purpose might be relevant to

showing coercion—and undoubtedly it is relevant to

certain free exercise claims. See, e.g., Church of

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,

545–46 (1993); Town of Greece, 572 U.S. at 597 (Alito,

J., concurring) (explaining that “intentional” decision

not to invite representatives of minority religions to

give legislative invocation would be “very different[ ]”). But purpose cannot itself be the test for an

Establishment Clause violation. A governmental action may be intended to advance religion, but that has

no bearing on whether it in fact coerces support for

religion. Is a food bank for the homeless unconstitutional if the government official who authorized it announced that he favored spending public funds on that

project on account of his religious belief in the importance of feeding the hungry?4

Second, Lemon’s demand that government not

seek to “advance religion” is incompatible with historical and current practice. If Lemon’s “advancement”

prong were applied in a principled manner, governments would be forbidden from providing exemptions

from generally applicable laws and regulations. Yet,

not only are accommodations “permissible” and “desirable,” in some circumstances they may be “required

4 Even worse, this Court has previously suggested that courts

can infer a predominant religious purpose by asking how an “objective observer” would view the “text, legislative history, and

implementation of the statute, or comparable official act.”

McCreary, 545 U.S. at 862–63 (quotation marks omitted).

by the Free Exercise Clause.” Aguillard, 482 U.S. at

617–18 (Scalia, J., dissenting); see also Cutter v. Wilkinson, 544 U.S. 709, 726 n.1 (2005) (Thomas, J., concurring); Texas Monthly, Inc. v. Bullock, 489 U.S. 1,

38–39 (1989) (Scalia, J., dissenting). Government

seeks to advance religion in innumerable other ways,

from exempting religious institutions “from the obligation to pay property taxes” to “allow[ing] students

to absent themselves from public school to take religious classes.” McCreary, 545 U.S. at 891 (Scalia, J.,

dissenting). And this Court has twice “approved (postLemon) government-led prayer to God.” Id. at 892; see

Town of Greece, 572 U.S. at 591–92. It does not offend

the Establishment Clause to prefer “religion over irreligion.” Rosenberger v. Rector & Visitors of Univ. of

Va., 515 U.S. 819, 855–56 (1995) (Thomas, J., concurring). But forbidding government actions that have

the effect of advancing religion would result in the

prohibition of even non-coercive “religion-neutral” policies that are required to avoid violating other constitutional rights. Id. at 842–43.

There also are severe practical problems in identifying whether a government action in fact advances

religion. It is exceedingly difficult to determine if government action “endorses or disapproves of religion”

by “send[ing] a message to nonadherents that they are

outsiders, not full members of the political community” or “the opposite message.” Cty. of Allegheny v.

ACLU Greater Pittsburgh Chapter, 592 U.S. 573, 625

(1989) (O’Connor, J., concurring) (quotation marks

omitted). This standard is generally applied, as the

Fourth Circuit panel did below, from the viewpoint of

a so-called reasonable observer. But even proponents

of Lemon disagree about what the reasonable observer

standard-within-a-standard entails. Justice O’Connor argued that “proper application of the endorsement test requires that the reasonable observer be

deemed more informed than the casual passerby.”

Capitol Square Review & Advisory Bd. v. Pinette, 515

U.S. 753, 779 (1995) (O’Connor, J., concurring in part

and concurring in the judgment). Her reasonable observer is “a personification of a community ideal of

reasonable behavior,” who is “aware of the history and

context of the community and forum in which the religious display appears.” Id. at 780 (quotation marks

omitted). Justice Stevens, on the other hand, disagreed with this “well-schooled jurist” standard, preferring “the universe of reasonable persons,” i.e.

“whether some viewers of the religious display would

be likely to perceive a government endorsement.” Id.

at 800 n.5 (Stevens, J., dissenting).

Neither version of the “reasonable observer,” however, yields a “principled way to choose between” one

person’s “honest and deeply felt offense” at seeing a

religious symbol and another person’s similar feeling

upon the “removal of the sign or display.” Van Orden

v. Perry, 545 U.S. 677, 696–97 (2005) (Thomas, J., concurring).

Consider a recently reported incident: President

Trump’s lack of participation in the group reading of

the Apostles’ Creed during President George H. W.

Bush’s funeral at the Washington National Cathedral.

See Hasan Dudar, Trumps Take Heat for Not Reciting

Apostles’ Creed at George H.W. Bush Funeral, USA

Today (Dec. 6, 2018), https://tinyurl.com/ybjlxuy9. If

the President had spoken the Creed while live on national television, would a reasonable observer have

believed that he sent a message to “nonadherents that

they are outsiders”? Did the President’s failure to join

the four living former Presidents in the reading signal

“the opposite message”? Restoring the original meaning of the Establishment Clause—a prohibition of actual coercion—eliminates the need to attempt the impossible task of divining the “effect” of a government

action on the community as a whole. See also Br. for

Am. Legion Pet’rs 47–51.

Finally, to the extent entanglement presents a

separate consideration than the purpose or effect

prongs, it too extends farther than the original meaning of the Establishment Clause. It may be that provision of “exclusive or disproportionate funding to pervasively sectarian institutions” violates the Constitution, Bowen v. Kendrick, 487 U.S. 589, 624 (1988)

(Kennedy, J., concurring), because appropriating tax

dollars in that manner would in effect “exact financial

support of the church,” Town of Greece, 572 U.S. at

608 (Thomas, J., concurring in part and concurring in

the judgment).5 But the Lemon test has been applied

to prohibit “any use of public funds,” Bowen, 487 U.S.

at 623 (O’Connor, J., concurring), where (for example)

the money may be spent on “religious educational

functions,” Lemon, 403 U.S. at 613, or to maintain a

5 The Court has implied that this principle might apply where

allocation of funds would disproportionately flow to religious institutions over non-religious institutions. See Zelman v. Simmons-Harris, 536 U.S. 639, 653 (2002) (finding that school choice

program created “no financial incentives that skew the program

toward religious schools” (quotation marks and alterations omitted)). But see Rosenberger, 515 U.S. at 855–56 (Thomas, J., concurring) (explaining “that Madison saw the principle of nonestablishment as barring governmental preferences for particular

religious faiths,” not religion generally).

religious display, Pet. App. at 28a (even “de minimis

government spending” or mere ownership of the religious display creates an unconstitutional entanglement). Since “government usually acts by spending

money,” this doctrine faithfully applied would dictate

the result that nearly every government action that

benefits religion is an impermissible entanglement.

Rosenberger, 515 U.S. at 843. That cannot be the law.

In summary, “[i]t is difficult to see how government practices that have nothing to do with creating

or maintaining the sort of coercive state establishment described above implicate the possible liberty interest of being free from coercive state establishments.” Newdow, 542 U.S. at 53 (Thomas, J., concurring in the judgment). The Lemon test sweeps far beyond such coercive practices and ultimately “requires

this Court to act as a censor, issuing national decrees

as to what is orthodox and what is not.” Cty. of Allegheny, 492 U.S. at 677–78 (Kennedy, J., concurring in

the judgment in part and dissenting in part).

Stare Decisis Is No Obstacle To

Setting Lemon Aside.

Although “[s]tare decisis is the preferred course,”

it “is not an inexorable command.” Janus v. Am. Fed’n

of State, Cty., & Mun. Emps., Council 31, 138 S. Ct.

2448, 2478 (2018) (quotation marks omitted). Indeed,

the “doctrine ‘is at its weakest when [the Court] interpret[s] the Constitution because [the Court’s] interpretation can be altered only by constitutional amendment or by overruling [the Court’s] prior decisions.’”

Id. (quoting Agostini v. Felton, 521 U.S. 203, 235

(1997)); see also Bryan A. Garner et al., The Law of

Judicial Precedent § 40, at 352 (2016).

“An important factor in determining whether a

precedent should be overruled is the quality of its reasoning.” Janus, 138 S. Ct. at 2479. The Lemon test

was “poorly reasoned,” as demonstrated above. Id.

Each of the three prongs is far removed from the original meaning of the Establishment Clause, as is the

test as a whole. It has resulted in many unfortunate

decisions, of which the Fourth Circuit’s opinion below

is just one. And it will put many more publicly supported religious displays in jeopardy, including government aid to efforts to preserve historic religious

sites. See supra Part I. Setting aside Lemon will “but

restore constitutional principles.” Gideon v. Wainright, 372 U.S. 335, 344 (1963).

The Lemon test, moreover, has proven wholly unworkable. Cf. Janus, 138 S. Ct. at 2481 (explaining

that “[a]nother relevant consideration in the stare decisis calculus is the workability of the precedent in

question”). Its failure in this regard has been repeatedly noted over the course of decades. Lemon “is

flawed in its fundamentals and unworkable in practice.” Cty. of Allegheny, 492 U.S. at 669 (Kennedy, J.,

concurring in the judgment in part and dissenting in

part). “As bad as the Lemon test is, it is worse for the

fact that, since its inception, its seemingly simple

mandates have been manipulated to fit whatever result the Court aimed to achieve.” McCreary, 545 U.S.

at 900 (Scalia, J., dissenting). The Court has at times

has suggested that Lemon “sacrifices clarity and predictability for flexibility.” Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980). But

in truth, “flexibility” is “‘a euphemism . . . for . . . the

absence of any principled rationale.’” Aguillard, 482

U.S. at 640 (Scalia, J., dissenting) (quoting Jesse H.

Choper, The Religion Clauses of the First Amendment:

Reconciling the Conflict, 41 U. Pitt. L. Rev. 673, 681

(1980)).

The lack of a principled rationale is most evident

in cases, like this one, involving a display of a religious

symbol. For example, the “reasonable observer”

standard is difficult, if not impossible, to apply consistently. “Would the majority’s version of a reasonable observer be satisfied and better equipped to evaluate the Memorial’s history and context if the cross

were smaller? Perhaps if it were the same size as the

other monuments in the park?” asked Chief Judge

Gregory in his dissent below. “Though Establishment

Clause cases require a fact-intensive analysis, we

must bear in mind our responsibility to provide the

government and public with notice of actions that violate the Constitution.” Pet. App. 43a; see also Br. for

Am. Legion Pet’rs 47–51. Lemon is plainly not “clear

and easy to apply.” South Dakota v. Wayfair, Inc., 138

S. Ct. 2080, 2097 (2018).

The intermittent and inconsistent invocation of

Lemon only accentuate these problems. In Lamb’s

Chapel v. Center Moriches Union Free School District,

Justice Scalia “bemoaned the strange Establishment

Clause geometry of crooked lines and wavering shapes

[Lemon’s] intermittent use has produced.” 508 U.S.

384, 399 (1993) (Scalia, J., concurring in the judgment) (citing scholarly criticism). Yet twenty-five

years later it still is entirely unclear in what situations Lemon should apply. That is especially true

(again) in cases concerning displays of religious symbols. Take, for example, Van Orden and McCreary,

the companion Ten Commandments cases. In Van Orden, the plurality held that Lemon was inappropriate

for passive displays, 545 U.S. at 686, and Justice

Breyer in his concurrence declined to apply Lemon or,

indeed, “any particular test,” id. at 703–04. On the

very same day, Justice Souter’s majority opinion in

McCreary reaffirmed Lemon’s “three familiar considerations,” particularly the secular purpose prong. 545

U.S. at 859. Majority opinions of this Court sometimes sidestep Lemon or omit a citation of it entirely.

See, e.g., Cutter, 544 U.S. at 717 n.6 (citing Lemon, but

tersely stating that “[w]e resolve this case on other

grounds”); Town of Greece, 572 U.S. 565 (not citing

Lemon at all).

Although “[i]n some cases, reliance provides a

strong reason for adhering to established law,” here it

does not. Janus, 138 S. Ct. at 2484. The lack of a

“clear or easily applicable standard” means any attempted invocation of reliance interests is, at the very

least, “misplaced.” Wayfair, 138 S. Ct. at 2098; see

also Janus, 138 S. Ct. at 2484. Lemon’s decades of life

have not made it any more palatable. That is particularly true here, where “our history and tradition

have shown that [the practice in question] could coexist with the principles of disestablishment and religious freedom.” Town of Greece, 572 U.S. at 578 (quotation marks omitted).

Reliance is lacking, moreover, because Lemon’s

status has been “uncertain” almost since the day it

was written. Janus, 138 S. Ct. at 2485. As Justice

Scalia famously wrote twenty-five years ago, the

Lemon test is “[l]ike some ghoul in a late-night horror

movie that repeatedly sits up in its grave and shuffles

abroad, after being repeatedly killed and buried.”

Lamb’s Chapel, 508 U.S. at 398. Individual “Justices

have, in their own opinions, personally driven pencils

through the creature’s heart.” Id. Indeed, the Court

has “gone so far as to say that [Lemon] has never been

binding.” Santa Fe. Indep. Sch. Dist. v. Doe, 530 U.S.

290, 319 (2000) (Rehnquist, C.J., dissenting) (citing

Lynch v. Donnelly, 465 U.S. 668, 679 (1984)) (emphasis added). Yet still it lives, for now.

“A certain momentum develops in constitutional

theory,” Chief Justice Burger observed in Lemon, “and

it can be a ‘downhill thrust’ easily set in motion but

difficult to retard or stop.” 403 U.S. at 624. Time and

again, Lemon has been pushed back up the hill, only

for gravity to pull it into the U.S. Reports yet again.

It is past time—finally—for the Court to end this Sisyphean drama and bury Lemon for good.

III. THE ESTABLISHMENT CLAUSE DOES NOT APPLY

TO THE STATES.

The Court could further prevent lower courts from

causing mischief in future cases involving state and

local governments by correcting an underlying mistake: incorporation of the Establishment Clause

against the States. “If the Establishment Clause is

not incorporated, then it has no application here,

where only [state] action is at issue.” Town of Greece,

572 U.S. at 604 (Thomas, J., concurring in part and

concurring in the judgment); Van Orden, 545 U.S. at

693 (Thomas, J., concurring).

The Establishment Clause Should

Not Be Incorporated Because It Is A

Federalism Provision.

Only those provisions of the Bill of Rights that

protect individuals (as distinct from States) from federal overreach may properly be incorporated against

the States. That is true regardless of whether incorporation is accomplished through the Fourteenth

Amendment’s Due Process Clause or Privileges or Immunities Clause. The Due Process Clause requires

the States to abide by “‘the same standards that protect those personal rights against federal encroachment.’” McDonald v. City of Chicago, Ill., 561 U.S.

742, 765 (2010) (quoting Malloy v. Hogan, 378 U.S. 1,

10 (1964)) (emphasis added). And if the Court were to

revisit the Privileges or Immunities Clause notwithstanding the Slaughterhouse Cases, it would find that

“the privileges and immunities of [United States] citizens included individual rights enumerated in the

Constitution”. Id. at 823 (Thomas, J., concurring in

part and concurring in the judgment) (emphasis

added).6

6 Incorporation of the exclusionary rule, which itself “is not an

individual right,” Herring v. United States, 555 U.S. 135, 141

(2009), does not undermine the principle that only protections of

individuals, not States, are incorporated. The exclusionary rule

is a “judicially created” prophylactic meant to deter violations of

Fourth Amendment rights. Id. at 139–44. As such, it is a doctrine that, so long as it is valid, necessarily accompanies incorporation of the Fourth Amendment because there is no justification

for applying “only a watered-down, subjective version of the individual guarantees of the Bill of Rights” to the States. McDonald, 561 U.S. at 786 (quoting Malloy, 378 U.S. at 10–11).

“The Establishment Clause does not purport to

protect individual rights.” Newdow, 542 U.S. at 50

(Thomas, J., concurring in the judgment). Rather, the

Clause prevents the establishment of a national religion and interference with state or local establishments of religion. See supra Part II.A. It is best understood, therefore, as a “federalism provision.” Town

of Greece, 572 U.S. at 605 (2014) (Thomas, J., concurring in part and concurring in the judgment).

It makes no sense to incorporate a federalism provision because incorporation would have a “paradoxical effect[:] to apply the clause against a state government is precisely to eliminate its right to choose

whether to establish a religion—a right clearly confirmed by the establishment clause itself.” Akhil Reed

Amar, The Bill of Rights 33–34 (1998); see also Town

of Greece, 572 U.S. at 606–07 (Thomas, J., concurring

in part and concurring in the judgment); Sch. Dist. of

Abingdon Twp. v. Schempp, 374 U.S. 203, 310 (1963)

(Stewart, J., dissenting) (“it is not without irony that

a constitutional provision evidently designed to leave

the States free to go their own way should now have

become a restriction upon their autonomy”). The Establishment Clause cannot be incorporated any more

than the Tenth Amendment can be incorporated. Incorporation in either case would “invert[ ] the original

import of the Amendment.” Town of Greece, 572 U.S.

at 606 (Thomas, J., concurring in part and concurring

in the judgment); see also, e.g., Daniel O. Conkle, Toward a General Theory of the Establishment Clause,

82 Nw. Univ. L. Rev. 1113, 1141 (1988) (“To ‘incorporate’ this policy of states’ rights for application against

the states would be utter nonsense, for there would be

no norms to incorporate. It would be the incorporation

of an empty set of values, akin to an incorporation of

the tenth amendment for application against the

states.”).

At least one scholar has argued that the Establishment Clause was not just a federalism provision,

but “also affirmatively immunized the people from the

effects of any federal establishment of religion,”

thereby providing a “substantive personal liberty susceptible of incorporation against the states.” Frederick Mark Gedicks, Incorporation of the Establishment

Clause Against the States: A Logical, Textual, and

Historical Account, 88 Ind. L.J. 669, 677 (2013). But

see Drakeman, supra, at 261 (disputing that the Establishment Clause reflects any “shared values” reflective of individual rights). According to Professor

Gedicks, the “disability” imposed by the Constitution

on the federal government created twin substantive

rights—a “state immunity” and a “personal immunity”—the latter of which was incorporated to the detriment of the former. Gedicks, supra, at 692–709.

But Professor Gedicks’s argument proves too

much. A constitutional prohibition on federal action

does not in and of itself create a personal, as contrasted with a state, right. For example, Article IV,

Section 3 prohibits the creation of new States from a

portion (or all) of an existing State “without the Consent of the Legislatures of the States concerned.” That

federal disability obviously is paired with a state immunity, but there is no piggybacking personal right.

So, too, with the Establishment Clause. The prohibition on establishment of a national religion does not

signify a personal right to be free from a national establishment; rather, “the States are the particular

beneficiaries of the Clause.” Town of Greece, 572 U.S.

at 606 (Thomas, J., concurring in part and concurring

in the judgment). Otherwise, every federalism provision—including the basic limits on the powers of the

federal government—would necessarily pair with a

corresponding individual right that would be incorporated against the States through the Fourteenth

Amendment. See Gedicks, 88 Ind. L.J. at 695–96 (because “federalism protects personal liberty,” “the disabilities that federalism imposes on federal action immunize individuals as well as the states”); cf. United

States v. Lopez, 514 U.S. 549, 552 (1995) (the Constitution’s “mandated division of authority was adopted

by the Framers to ensure protection of our fundamental liberties” (quotation marks omitted)).

There would be no basis to exempt the Tenth

Amendment from incorporation, for it follows the

same template. Indeed, the Tenth Amendment theoretically could be read to provide the same kind of

twin immunities that Professor Gedicks has discovered in the Establishment Clause: the federal government is prohibited from exercising powers not delegated to it, and the right to be free from any such exercise is held by “the States respectively” and “the people.” But it would be absurd to incorporate the Tenth

Amendment, and it is similarly illogical to incorporate

the Establishment Clause. See Steven D. Smith, Foreordained Failure 24 (1995) (“it seems nonsensical or

incoherent to suggest that a provision representing

‘essential federalism’ has substantive meaning independent of its federalism or that the provision has

substantive content that can be ‘extended’ to the

states”).

Nor is there conclusive historical evidence that

the framers of the Fourteenth Amendment believed

the Establishment Clause protected an individual

right and incorporated it on that basis. See generally

Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Non-Establishment Principle, 27 Ariz. St. L. J. 1085 (1995) (arguing that the

Establishment Clause was transformed into a personal liberty that could be incorporated). The evidence supporting that hypothesis is mixed, at best.

See Town of Greece, 572 U.S. at 607 (Thomas, J., concurring in part and concurring in the judgment);

Amar, supra, at 252–53 (questioning whether, “even

if by 1866 the establishment clause was no longer a

state right, pure and simple, [we can] really say that

it was a private right of individuals, as opposed to a

right of the public at large”). In the context of “the

textual and logical difficulties posed by incorporation”

of the Clause, “the burden of persuasion . . . rests with

those who claim that the Clause assumed a different

meaning upon adoption of the Fourteenth Amendment.” Town of Greece, 572 U.S. at 607 (Thomas, J.,

concurring in part and concurring in the judgment);

see also Newdow, 542 U.S. at 51 (Thomas, J., concurring in the judgment). That burden cannot be carried.

Stare Decisis Should Not Prevent

Correcting

The

Incorporation

Mistake.

The Court should not apply stare decisis to retain

incorporation of the Establishment Clause. The doctrine of stare decisis has the least force where constitutional decisions are under reconsideration. See supra Part II.B. The case that announced the incorporation of the Establishment Clause, Everson, did so

obliquely and with minimal reasoning. The opinion

noted that the Free Exercise Clause had been incorporated and then asserted that “[t]here is every reason

to give the same application . . . to the ‘establishment

of religion’ clause,” noting that the two clauses are

“complementary.” 330 U.S. at 15. That fleeting, conclusory analysis is owed no deference. See Janus, 138

S. Ct. at 2479 (stating that “quality of reasoning” is

“[a]n important factor in determining whether a precedent should be overruled”). Everson “failed to appreciate that a very different” issue is presented when incorporation of the Establishment Clause is concerned.

Janus, 138 S. Ct. at 2479. More than that, Everson

failed to independently assess whether the Establishment Clause should be incorporated. See McDonald,

561 U.S. at 763–65 (explaining that despite

“shed[ding] any reluctance to” incorporate the individual protections of the Bill of Rights, the Court has engaged in a careful “process of ‘selective incorporation’”). The opinion thus “glibly effected a sea change

in constitutional law.” Town of Greece, 572 U.S. at 607

n.1 (Thomas, J., concurring in part and concurring in

the judgment). It was not enough to uncritically rely

on the prior incorporation of the Free Exercise Clause.

See Janus, 138 S. Ct. at 2480 (overruling case in part

because it was “not well reasoned”).

Reliance interests cannot save incorporation of

the Establishment Clause. The Free Exercise Clause

has been properly incorporated against the States by

the Fourteenth Amendment. See Schempp, 536 U.S.

at 311 (Stewart, J., dissenting) (“That the central

value embodied in the First Amendment—and, more

particularly, in the guarantee of ‘liberty’ contained in

the Fourteenth—is the safeguarding of an individual’s

right to free exercise of his religion has been consistently recognized.”). Even most antagonists of Establishment Clause incorporation accept that assessment. See, e.g., Zelman, 536 U.S. at 679 & n.4

(Thomas, J., concurring). The Free Exercise Clause,

therefore, joins with other protections of individual

rights as a bulwark against state encroachment on

matters of religious observance and religious conscience. Indeed, “[t]he Free Exercise Clause bars even

‘subtle departures from neutrality’ on matters of religion.” Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (quoting

Church of Lukumi, 508 U.S. at 534).

The Constitution thus prevents States both from

targeting particular religions for disfavored treatment

and from meaningfully advantaging one denomination such that adherents’ ability to practice other religions is diminished. A State very likely could not “decree[ ] that individuals profess a state creed or attend

a state service or pay money directly to a state church”

without violating the Free Exercise Clause and, perhaps, other individual guarantees, such as the Equal

Protection Clause. Amar, supra, at 252; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (“Thus

the [First] Amendment embraces two concepts—the

freedom to believe and freedom to act.”); Michael W.

McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.

1409, 1512 (1990) (concluding that granting “free exercise exemptions is more consistent with the original

understanding than is a position that leads only to the

facial neutrality of legislation”). As Justice Jackson

wrote for the Court in West Virginia State Board of

Education v. Barnette, 319 U.S. 624, 642 (1943), “[i]f

there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to

confess by word or act their faith therein.” The personal right to worship as one sees fit “is susceptible of

restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.”

Id. at 639. But see Emp’t Div., Dep’t of Human Res. of

Ore. v. Smith, 494 U.S. 872 (1990) (rejecting “compelling interest” test where law is neutral and generally

applicable).

It is even possible that the individual guarantees

of the Free Exercise Clause and the Equal Protection

Clause might prevent a State from simply proclaiming

an official religion, much as States have official state

birds, flowers, fish, and even beverages. See, e.g., Va.

Code § 1-510 (establishing, among other things, milk

as the official beverage and “George Washington’s rye

whiskey” as the official spirit of the Commonwealth of

Virginia). Such a “noncoercive establishment” might

“violate[ ] principles of religious liberty and religious

equality,” in addition to “offend[ing] basic principles

of equal citizenship and equal protection.” Amar, supra, at 254. In fact, “[i]t may well be the case that

anything that would violate the incorporated Establishment Clause would actually violate the Free Exercise Clause, further calling into doubt the utility of incorporating the Establishment Clause.” Newdow, 542

U.S. at 53 n.4 (Thomas, J., concurring in the judgment); see also id. at 54 n.5; Van Orden, 545 U.S. at

693 (2005) (Thomas, J., concurring); Cutter, 544 U.S.

at 728 n.3 (Thomas, J., concurring).

The Court need not and should not decide the full

breadth and depth of the Free Exercise Clause in this

case. If it is inclined to reconsider incorporation of the

Establishment Clause, it is sufficient to dispel any invocation of reliance interests to support stare decisis

on the ground that an incorporated Establishment

Clause, properly understood as a prohibition of actual

coercion, does not provide much more protection than

the Free Exercise Clause. See infra Part II.A; Newdow, 542 U.S. at 46 (Thomas, J., concurring in the

judgment) (“any sensible incorporation of the Establishment Clause, which would probably cover little

more than the Free Exercise Clause”). As such, reliance on Everson is misplaced and should not prevent

this Court for holding that the Establishment Clause

is not incorporated against the States.

CONCLUSION

For the foregoing reasons, the Court should

reverse the Fourth Circuit.

Respectfully submitted,