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,
v.
AMERICAN HUMANIST ASSOCIATION,
et. al.,
Respondents.
MARYLAND-NATIONAL CAPITAL PARK
AND PLANNING COMMISSION,
Petitioner,
v.
AMERICAN HUMANIST ASSOCIATION,
et. al.,
Respondents.
On Writ of Certiorari to the U.S. Court of
Appeals for the Fourth Circuit
BRIEF OF AMICUS CURIAE LIBERTY
COUNSEL IN SUPPORT OF
PETITIONERS
Mathew D. Staver
Mary E. McAlister
(Counsel of Record)
LIBERTY COUNSEL
Anita L. Staver
P.O. Box 11108
Horatio G. Mihet
Lynchburg, VA 24506
LIBERTY COUNSEL
(407) 875-1776
PO Box 540774
court@lc.org
Orlando, FL 32854
Attorneys for Amicus
(407) 875-1776
Curiae
court@lc.org
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................. iv
INTEREST OF AMICUS .................................. 1
SUMMARY OF ARGUMENT .......................... 2
ARGUMENT ..................................................... 4
I.
THIS
COURT’S
FREQUENT
CRITICISM OF, OCCASIONAL
DEPARTURE
FROM,
AND
OCCASIONAL RELIANCE ON,
THE LEMON TEST FOR PASSIVE
GOVERNMENT
DISPLAYS
DEMONSTRATE WHY IT MUST
BE
ABANDONED
AS
UNWORKABLE. ..................................... 4
II.
WHOLLY
INCONSISTENT
RULINGS
IN
PASSIVE
RELIGIOUS DISPLAY CASES
ILLUSTRATE HOW THE LEMON
TEST HAS CONFUSED INSTEAD
OF CLARIFIED THE QUESTION
OF WHEN A GOVERNMENT
DISPLAY
VIOLATES
THE
ESTABLISHMENT CLAUSE. ............. 14
A.
Fractured Rulings In Holiday
Display Cases Show How The
Lemon Test Is Unworkable As
An Analytical Tool. ......................... 14
1.
Lynch v. Donnelly ................. 14
ii
2.
County of Allegheny v.
ACLU .................................... 15
B.
Conflicts
Regarding
The
Constitutionality Of Historic
Document Displays Featuring
The
Ten
Commandments
Illustrate How The Lemon Test
Leads To Unprincipled Results ...... 18
C.
Whether and How Lemon
Should Be Applied Has Also
Left Analyses of Decalogue
Monuments
Hopelessly
Confused. ........................................ 20
D.
1.
Tenth Circuit: Lemon
applies
and
the
monument
is
unconstitutional. .................. 21
2.
Ninth Circuit: Van Orden,
not Lemon, applies and
the
monument
is
constitutional. ....................... 23
3.
Eighth Circuit: Lemon
does not apply and the
monuments
are
constitutional. ....................... 25
Contradictory
Analyses
Of
Passive Monuments Containing
Crosses And A Statue Further
Illustrate Why Lemon Must Be
Abandoned. ..................................... 28
iii
III.
1.
Ninth Circuit: Mt. Soledad cross
unconstitutional, Christ
statue constitutional. ........... 31
2.
Second Circuit: 9/11 cross
memorial constitutional. ...... 34
THIS COURT SHOULD FINALLY
ABANDON THE UNWORKABLE
LEMON TEST IN FAVOR OF AN
OBJECTIVE STANDARD. ................... 35
A.
History And Ubiquity, Properly
Applied, Would Distinguish
Acknowledgment
From
Establishment. ............................... 40
B.
Objectively
Non-Coercive
Historical Practices Do Not
Offend
the
Establishment
Clause. ............................................ 44
CONCLUSION ................................................ 47
iv
TABLE OF AUTHORITIES
Cases
ACLU Nebraska Foundation v. City of
Plattsmouth, Nebraska,
419 F.3d 772 (8th Cir.2005) ......................... 25
ACLU of Kentucky v. Mercer County,
432 F.3d 624 (6th Cir. 2005) ........................ 19
ACLU v. Grayson County,
591 F.3d 837 (6th Cir. 2010) ........................ 19
ACLU v. Rowan County,
513 F. Supp. 2d 889 (E.D.Ky. 2007) ............ 19
Aguilar v. Felton,
473 U.S. 402 (1985) ...................................... 12
American Atheists v. Port Authority,
760 F.3d 227 (2nd Cir. 2014)........................ 34
American Jewish Congress v. Chicago,
827 F.2d 120 (7th Cir. 1987) ........................ 17
Bd. of Educ. of Kiryas Joel Village School
Dist. v. Grumet,
512 U.S. 687 (1994) ............................. 7, 36-39
Board of Educ. v. Allen,
392 U.S. 236 (1968) ...................................... 42
Books v. Elkhart Cty., Ind.,
401 F.3d 857 (7th Cir. 2005). ....................... 19
v
Bowen v. Kendrick,
487 U.S. 589 (1988) ..................................... 42
Braunfield v. Roberts,
175 U.S. 291 (1899) ...................................... 43
Capitol Square Review & Advisory Bd. v.
Pinette,
515 U.S. 753 (1995) ...............................passim
Card v. City of Everett,
520 F.3d 1009 (2008) .................................... 24
Committee for Public Education &
Religious Liberty v. Regan,
444 U.S. 646 (1980). ....................................... 6
County of Allegheny v. ACLU,
492 U.S. 573 (1989) ...............................passim
Craig v. Boren,
429 U.S. 190 (1976) ...................................... 37
Edwards v. Aguilard,
482 U.S. 578 (1987) .................................... 4, 6
Elk Grove Unified School Dist. v.
Newdow,
542 U.S. 1 (2004) .................................... 36, 40
Felix v. City of Bloomfield,
841 F.3d 848 (2016) ................................ 22, 23
vi
Freedom From Religion Foundation v.
Weber,
628 Fed.Appx. 952 (9th Cir. 2015) ......... 32, 33
Hunt v. McNair,
413 U.S. 734 (1973). ..................................... 13
Kondrat’yev v. City of Pensacola, Florida,
903 F.3d 1169 (11th Cir. 2018) .................... 31
Lamb’s Chapel v. Center Moriches Union
Free School Dist.,
508 U.S. 384 (1993) ................................ 13, 27
Lee v. Weisman,
505 U.S. 577 (1992) ................................ 11, 44
Lemon v. Kurtzman,
403 U.S. 602 (1971) ...............................passim
Marsh v. Chambers,
463 U.S. 783 (1983) ...................................... 12
McCreary County, Ky. v. ACLU of Ky.,
545 U.S. 844 (2005) ...............................passim
Mueller v. Allen,
463 U.S. 388 (1983) ...................................... 42
Quick Bear v. Leupp,
210 U.S. 50 (1908) ........................................ 43
Red River Freethinkers v. City of Fargo,
764 F.3d 948 (8th Cir. 2014) ................... 25-27
vii
Rosenberger v. Rector and Visitors of
Univ. of Va.,
515 U.S. 819 (1995) ...................................... 39
Town of Greece v. Galloway,
572 U.S. 565 (2014). ..................................... 42
Trunk v. City of San Diego,
629 F.3d 1099 (9th Cir. 2011) ................. 31-32
Van Orden v. Perry,
545 U.S. 677 (2005) ...............................passim
Wallace v. Jaffree,
472 U.S. 38 (1985) .................................... 6, 18
Walz v. Tax Comm’n,
397 U.S. 664 (1970) ...................................... 43
Witters v. Washington Dept. of Servs. for
the Blind,
474 U.S. 481 (1986) ..................................... 42
Zelman v. Simmons-Harris,
536 U.S. 639 (2002) ...................................... 42
Zobrest v. Catalina Foothills Sch. Dist.,
509 U.S. 1 (1993) .......................................... 42
Treatises
L. Levy, THE ESTABLISHMENT CLAUSE
(1986) ............................................................. 44
viii
L. Tribe, AMERICAN CONSTITUTIONAL
LAW (2d ed. 1988) .......................................... 9
1
INTEREST OF AMICUS 1
Liberty Counsel is a civil liberties
organization that provides education and legal
defense on issues relating to religious liberty,
the sanctity of human life, and the natural
family. Liberty Counsel is committed to
upholding the historical understanding and
protection of the rights to free speech and free
exercise of religion, and to ensuring that those
rights remain an integral part of our legal
protections.
Liberty
Counsel
represented
the
Petitioners in McCreary County, Ky. v. ACLU of
Ky., 545 U.S. 844 (2005), as well as other
individuals, institutions, organizations and
governmental entities who have struggled to
negotiate
the
maze
of
this
Court’s
Establishment
Clause
jurisprudence.
In
particular, Liberty Counsel and its clients have
wrestled with the question of whether, when and
Counsel for a party did not author this
Brief in whole or in part, and no such counsel or
party made a monetary contribution to fund the
preparation or submission of this Brief. No
person or entity, other than Amicus Curiae or its
counsel made a monetary contribution to the
preparation and submission of this Brief.
Petitioners and Respondents have filed blanket
consents to the filing of Amicus Briefs in favor of
either party or no party.
1
2
how the test established in Lemon v. Kurtzman,
403 U.S. 602 (1971) should be applied to passive
displays such as the Bladensburg monument. In
its arguments to the Court in McCreary County
and in subsequent briefs since then, Liberty
Counsel has asked this Court to abandon Lemon
in favor of an objective standard.
Liberty Counsel is again asking this Court
to reject Lemon and consider an objective test
derived from history, ubiquity and the absence
of coercion.
SUMMARY OF ARGUMENT
This case presents the latest example of
the confusion and chaos arising from the
continuing sentience of the test adopted by this
Court in Lemon v. Kurtzman, 403 U.S. 602
(1971). As members of the Court have noted for
nearly 30 years, the Lemon test is an
unworkable standard that has caused more
confusion than clarity. Government officials and
appellate judges have been forced to journey
through a maze fraught with wrong turns, dead
ends and confusing guideposts that lead to
contradictory results even with virtually
identical factual scenarios.
Cases decided since this Court’s opinions
in McCreary County and Van Orden v. Perry,
545 U.S. 677 (2005), have exacerbated the chaos
arising from continuing application of the
Lemon test to Establishment Clause challenges
of government displays. In particular,
3
identifying the “reasonable observer” and
defining his knowledge and memory in order to
determine whether a display evinces an
impermissible religious purpose has proven to
be a Sisyphean task. Without bright-line rules to
guide them, judges have had to engage in ad hoc,
subjective determinations which offer no
guidance to government officials trying to
comply with the Establishment Clause or to
other judges struggling to address similar
challenges. The result is a patchwork of
inconsistent and contradictory opinions between
and within circuits.
The time has long passed to euthanize and
fully inter the Lemon test and to adopt a
standard that will provide clarity and
consistency for citizens, government officials
and the courts. An objective standard would
bring the Court’s Establishment Clause
jurisprudence more in line with the First
Amendment, this country’s heritage, and this
Court’s historical interpretation of the clause.
Liberty Counsel respectfully requests that the
Court adopt such a standard.
4
ARGUMENT
I.
THIS
COURT’S
FREQUENT
CRITICISM OF, OCCASIONAL
DEPARTURE
FROM,
AND
OCCASIONAL RELIANCE ON,
THE LEMON TEST FOR PASSIVE
GOVERNMENT
DISPLAYS
DEMONSTRATE WHY IT MUST
BE
ABANDONED
AS
UNWORKABLE.
Nearly 30 years have passed since Justice
Kennedy said that a “substantial revision of our
Establishment Clause doctrine might be in
order.” County of Allegheny v. ACLU, 492 U.S.
573, 656 (1989) (Kennedy, J., concurring in part,
dissenting in part). The ensuing decades of
inconsistent results in passive government
display cases have only intensified the need for
revision of this Court’s Establishment Clause
jurisprudence, particularly in answering the
question of whether, when and how the Lemon
test should be used. Justice Scalia’s comment
that “more decisions on the subject have been
rendered, but they leave the theme of chaos
securely unimpaired” is more true today than
ever. Edwards v. Aguilard, 482 U.S. 578, 640
(1987) (Scalia, J., dissenting). As Justice Scalia
observed:
5
Our cases interpreting and applying
the purpose test have made such a
maze of the Establishment Clause
that even the most conscientious
government official can only guess
what motives will be held
unconstitutional. We have said
essentially
the
following:
Government may not act with the
purpose of advancing religion,
except when forced to do so by the
Free Exercise Clause (which is now
and then); or when eliminating
existing governmental hostility to
religion (which exists sometimes); or
even when merely accommodating
governmentally
uninhibited
religious practices, except that at
some point (it is unclear where)
intentional accommodation results
in the fostering of religion, which of
course is unconstitutional.
Id. at 636. Justice Scalia continued:
In the past we have attempted to
justify
our
embarrassing
Establishment
Clause
jurisprudence on the ground that it
“sacrifices clarity and predictability
for flexibility.” Committee for Public
Education & Religious Liberty v.
6
Regan, 444 U.S. [646], at 662, 100
S.Ct. [840], at 851 [(1980)]. One
commentator
has
aptly
characterized this as “a euphemism
... for ... the absence of any
principled
rationale.”
[citation
omitted]. I think it time that we
sacrifice some “flexibility” for
“clarity
and
predictability.”
Abandoning Lemon’s purpose test –
a test which exacerbates the tension
between the Free Exercise and
Establishment Clauses, has no basis
in the language or history of the
Amendment, and, as today’s
decision shows, has wonderfully
flexible consequences – would be a
good place to start.
Id. at 639-640.
Former Chief Justice Rehnquist similarly
called for abandonment of Lemon, and
particularly its “purpose” prong, which is not “a
proper interpretation of the Constitution,” has
“no basis in the history” of the First Amendment
and “has proven mercurial in application.”
Wallace v. Jaffree, 472 U.S. 38, 108 (1985)
(Rehnquist, C.J., dissenting). “If a constitutional
theory has no basis in the history of the
amendment it seeks to interpret, is difficult to
apply and yields unprincipled results, I see little
use in it.” Id. at 112.
7
Justice Scalia similarly called the Lemon
test “meaningless” in Board of Educ. of Kiryas
Joel Village Sch. Dist. v. Grumet, 512 U.S. 687,
751 (1994) (Scalia, J., dissenting). “The problem
with (and the allure of) Lemon has not been that
it is ’rigid,’ but rather that in many applications
it has been utterly meaningless, validating
whatever result the Court would desire.” Id. In
his dissent in McCreary County, Justice Scalia
pointedly described the flaws in Lemon’s
“reasonable observer” standard and the
concomitant concept of “religious taint”
resulting from prior governmental actions that
the Court has sometimes applied:
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. Today’s opinion is no
different. In two respects it modifies
Lemon to ratchet up the Court’s
hostility to religion. First, the Court
justifies inquiry into legislative
purpose, not as an end itself, but as
a means to ascertain the appearance
of the government action to an
“‘objective observer.’” Because in
the Court’s view the true danger to
be guarded against is that the
objective observer would feel like an
8
“‘outside[r]’” or “‘not [a] full
membe[r]
of
the
political
community,’” its inquiry focuses not
on the actual purpose of government
action, but the “purpose apparent
from government action.” Under
this approach, even if a government
could show that its actual purpose
was not to advance religion, it would
presumably violate the Constitution
as long as the Court’s objective
observer would think otherwise.
McCreary County, 545 U.S. at 900-01 (Scalia, J.,
dissenting). “[T]he legitimacy of a government
action with a wholly secular effect would turn on
the misperception of an imaginary observer that
the government officials behind the action had
the intent to advance religion,” Id. at 901.
Adherence to the Lemon test and its
reliance upon the perceptions of a “reasonable
observer” has created a de facto “heckler’s veto”
of passive government displays, such as the
Bladensburg monument. Rather than analyzing
whether the government intended to “establish”
a religion, courts must psychoanalyze whether a
fictional “reasonable observer” perceives that
the government is favoring religion.
However,
when
Justice
O’Connor
introduced the “reasonable observer” standard
as part of the “endorsement” prong of Lemon,
she envisioned that it would be similar to the
9
“reasonable person” in tort law, who “is not to be
identified with any ordinary individual, who
might occasionally do unreasonable things,” but
is “rather a personification of a community ideal
of reasonable behavior, determined by the
[collective] social judgment.” Capitol Square
Review & Advisory Bd. v. Pinette, 515 U.S. 753,
779-80 (1995) (O’Connor, J., concurring).
Thus, “we do not ask whether there
is any person who could find an
endorsement of religion, whether
some people may be offended by the
display, or whether some reasonable
person might think [the State]
endorses
religion.”
[citation
omitted].
Saying
that
the
endorsement inquiry should be
conducted from the perspective of a
hypothetical observer who is
presumed to possess a certain level
of information that all citizens
might not share neither chooses the
perceptions of the majority over
those of a “reasonable nonadherent,” cf. L. Tribe, AMERICAN
CONSTITUTIONAL LAW 1293 (2d ed.
1988), nor invites disregard for the
values the Establishment Clause
was intended to protect. It simply
recognizes
the
fundamental
difficulty inherent in focusing on
10
actual people: There is always
someone who, with a particular
quantum of knowledge, reasonably
might perceive a particular action
as an endorsement of religion. A
State has not made religion relevant
to standing in the political
community simply because a
particular viewer of a display might
feel uncomfortable.
Id. at 780 (emphasis added). Under that
formulation, the endorsement inquiry should
not be “about the perceptions of particular
individuals or saving isolated nonadherents
from the discomfort of viewing symbols of a faith
to which they do not subscribe.” Id. at 779
(emphasis added). The test should not “focus on
the actual perception of individual observers,
who naturally have differing degrees of
knowledge.” Id. “Under such an approach, a
religious display is necessarily precluded so long
as some passersby would perceive a
governmental endorsement thereof.”
As this Court’s inconsistent precedents
demonstrate, contrary to Justice O’Connor’s
vision, courts have focused on the actual
perceptions of individual observers with
differing degrees of knowledge. If a panel’s
particular version of the “reasonable observer”
perceives that a government observance or
display favors religion in a way that offends
11
them, then the observance or display is
constitutionally invalid. However, if the panel’s
version of the “reasonable observer” would not
perceive that a government observance or
display favors religion in a way that offends
them, then the display is valid.
The Supreme Court has roundly criticized
the Lemon test and its “reasonable observer”
and “endorsement” prongs and has refused to
apply them in many cases. However, the Court
has not explicitly abandoned Lemon. Instead, as
Justice Scalia observed:
Like some ghoul in a late-night
horror movie that repeatedly sits up
in its grave and shuffles abroad,
after being repeatedly killed and
buried,
Lemon
stalks
our
Establishment
Clause
jurisprudence
once
again,
frightening the little children and
school attorneys of Center Moriches
Union Free School District. Its most
recent burial, only last Term, was,
to be sure, not fully six feet under:
Our decision in Lee v. Weisman, 505
U.S. 577, 586–587, 112 S.Ct. 2649,
2654, 120 L.Ed.2d 467 (1992),
conspicuously avoided using the
supposed “test” but also declined the
invitation to repudiate it. Over the
years, however, no fewer than five of
12
the currently sitting Justices have,
in their own opinions, personally
driven
pencils
through
the
creature’s heart (the author of
today’s opinion repeatedly), and a
sixth has joined an opinion doing
so…..
The secret of the Lemon test’s
survival, I think, is that it is so easy
to kill. It is there to scare us (and our
audience) when we wish it to do so,
but we can command it to return to
the tomb at will. See, e.g., Lynch v.
Donnelly, 465 U.S. 668, 679, 104
S.Ct. 1355, 1362, 79 L.Ed.2d 604
(1984) (noting instances in which
Court has not applied Lemon test).
When we wish to strike down a
practice it forbids, we invoke it, see,
e.g., Aguilar v. Felton, 473 U.S. 402,
105 S.Ct. 3232, 87 L.Ed.2d 290
(1985) (striking down state remedial
education program administered in
part in parochial schools); when we
wish to uphold a practice it forbids,
we ignore it entirely, see Marsh v.
Chambers, 463 U.S. 783, 103 S.Ct.
3330, 77 L.Ed.2d 1019 (1983)
(upholding
state
legislative
chaplains). Sometimes, we take a
middle course, calling its three
13
prongs “no more than helpful
signposts,” Hunt v. McNair, 413
U.S. 734, 741, 93 S.Ct. 2868, 2873,
37 L.Ed.2d 923 (1973). Such a docile
and useful monster is worth keeping
around, at least in a somnolent
state; one never knows when one
might need him.
Lamb’s Chapel v. Center Moriches Union Free
School Dist., 508 U.S. 384, 398-400 (1993)
(Scalia, J., concurring in judgment).
What this Court initially intended to be a
yardstick for measuring when government
crosses the line from acknowledgement to
endorsement has morphed into a weapon used
selectively to eliminate public religious
expression when a particular panel deems it to
cross an imaginary line. Such a “heckler’s veto”
is antithetical to the Founders’ understanding of
the Establishment Clause. The continuing
stream of cases raising Establishment Clause
challenges to passive displays such as the war
memorial here points to the urgent need to
abandon the Lemon test and adopt an objective
test.
14
II.
WHOLLY INCONSISTENT RULINGS
IN PASSIVE RELIGIOUS DISPLAY
CASES ILLUSTRATE HOW THE
LEMON TEST HAS CONFUSED
INSTEAD OF CLARIFIED THE
QUESTION
OF
WHEN
A
GOVERNMENT DISPLAY VIOLATES
THE ESTABLISHMENT CLAUSE.
A.
Fractured
Rulings
In
Holiday Display Cases Show
How The Lemon Test Is
Unworkable
As
An
Analytical Tool.
The utter failure of the Lemon test is
illustrated by internally inconsistent results in
passive holiday display cases. Nearly identical
displays featuring mixtures of religious and
secular symbols yielded vastly different results
based upon different justices’ views on the
“reasonable observer’s” perceptions.
1. Lynch v. Donnelly
For example, Justice O’Connor found that
a reasonable observer could not view a city’s
Christmas display that included a crèche, Santa
Claus house, reindeer, candy-striped poles,
Christmas tree and carolers as endorsing
religion. Lynch, 465 U.S. at 692 (O’Connor, J.,
concurring). “Although the religious and indeed
sectarian significance of the crèche, as the
district court found, is not neutralized by the
15
setting, the overall holiday setting changes what
viewers may fairly understand to be the purpose
of the display.” Id.
However, Justices Brennan, Marshall,
Blackmun and Stevens disagreed: “For many,
the City’s decision to include the crèche as part
of its extensive and costly efforts to celebrate
Christmas can only mean that the prestige of the
government has been conferred on the beliefs
associated with the crèche, thereby providing ‘a
significant symbolic benefit to religion….” Id. at
701 (Brennan, J. dissenting).
2.
County of Allegheny
v. ACLU
Holiday displays in a county courthouse
resulted in equally fractured rulings under the
endorsement test. County of Allegheny v. ACLU,
492 U.S. 573 (1989). One of the displays
challenged in the case was a crèche placed in the
county courthouse and the other a display that
included a menorah, Christmas tree, and sign
saluting liberty in front of the city-county
building. Id. at 587. Analyzing the tree and
menorah display, the plurality found that a
reasonable observer would not view the addition
of the menorah to the tree display as an
endorsement of the Christian and Jewish faiths.
Id. at 620.
Justice O’Connor said that the display
“conveyed a message of pluralism and freedom
of belief during the holiday season.” Id. at 635
16
(O’Connor, J. concurring). “A reasonable
observer would, in my view, appreciate that the
combined display is an effort to acknowledge the
cultural diversity of our country and to convey
tolerance of different choices in matters of
religious belief or nonbelief by recognizing that
the winter holiday season is celebrated in
diverse ways by our citizens.” Id. at 635-36.
However, Justice Brennan stated that the
reasonable observer could not overlook the
“religious significance” of the Christmas tree
when it is placed next to a menorah. Id. at 641
(Brennan, J., concurring in part and dissenting
in part). “I shudder to think that the only
‘reasonable observer’ is one who shares the
particular views on perspective, spacing and
accent expressed in Justice Blackmun’s opinion,
thus making analysis under the Establishment
Clause look more like an exam in Art 101 than
an inquiry into constitutional law.” Id. at 64243.
Justice Stevens also found that the
reasonable observer would find that the
“presence
of
the
Chanukah
menorah,
unquestionably a religious symbol, gives
religious significance to the Christmas tree. The
overall display thus manifests governmental
approval of the Jewish and Christian religions.”
Id. at 654 (Stevens, J., concurring in part and
dissenting in part).
Justice Kennedy’s characterization of the
endorsement/reasonable observer standard in
17
County of Allegheny illustrates why Lemon is
ineffectual as a constitutional measuring stick.
Id. at 675-76 (Kennedy, J. dissenting).
This test could provide workable
guidance to the lower courts, if ever,
only after this Court has decided a
long series of holiday display cases,
using little more than intuition and
a tape measure. Deciding cases on
the basis of such an unguided
examination of marginalia is
irreconcilable with the imperative of
applying neutral principles in
constitutional
adjudication.
“It
would be appalling to conduct
litigation under the Establishment
Clause as if it were a trademark
case, with experts testifying about
whether one display is really like
another, and witnesses testifying
they were offended – but would have
been less so were the crèche five feet
closer to the jumbo candy cane.”
American Jewish Congress v.
Chicago, 827 F.2d 120, 130 (7th Cir.
1987) (Easterbrook, J., dissenting).
Id. Rather than providing an objective, neutral
standard for courts to use when analyzing
Establishment
Clause
challenges
and
legislatures to use when drafting legislation,
18
Lemon’s endorsement test and its “reasonable
observer”
standard
have
only
further
complicated what was already a labyrinthine
constitutional analysis. This is also seen in
passive displays involving the Decalogue and, as
in this case, crosses.
B.
Conflicts Regarding The
Constitutionality Of Historic
Document
Displays
Featuring
The
Ten
Commandments
Illustrate
How The Lemon Test Leads
To Unprincipled Results.
The inconsistent decisions regarding
displays that include the Ten Commandments
demonstrate how, as Chief Justice Rehnquist
predicted, the Lemon test and its purpose prong
yield unprincipled results. Wallace v. Jaffree,
472 U.S. 38, 112 (1985) (Rehnquist, J.,
dissenting). Historical displays that include the
Decalogue have been found constitutional or
unconstitutional, depending upon how the
courts applied Lemon. Foundations of American
Law and Government displays, which consist of
nine documents in equally-sized frames, one of
which is the Ten Commandments, have been
donated by private parties and displayed in
county government buildings throughout the
country. Lawsuits claiming that the displays
violate the Establishment Clause were filed
19
against counties in Kentucky, Tennessee and
Indiana. Two such displays in McCreary and
Pulaski counties in Kentucky were found to be
unconstitutional by this Court in McCreary
County, Ky. v. ACLU of Ky., 545 U.S. 844 (2005).
Since then, lower court judges examining
identical displays in other Kentucky counties
reached contradictory conclusions regarding
their constitutionality. ACLU of Kentucky v.
Mercer County, 432 F.3d 624, 636 (6th Cir. 2005)
(finding
the
Foundations
Display
constitutional); ACLU v. Rowan County, 513 F.
Supp. 2d 889 (E.D.Ky. 2007) (same); ACLU v.
Grayson County, 591 F.3d 837, 856 (6th Cir.
2010) (same). Illustrating the hopeless confusion
of the Lemon test, an identical historical display
could be unconstitutional in one Kentucky
county, but constitutional in another, depending
upon, inter alia, the subjective belief of the
fictional “reasonable observer.”
Furthermore, according to the Seventh
Circuit, a “reasonable observer” of the same
display in Elkhart County Indiana would “think
history, not religion.” Books v. Elkhart Cty., Ind.,
401 F.3d 857, 869 (7th Cir. 2005). The same
display that was alternatively religious or
secular in Kentucky was found to be “a secular
display in its purpose and effect” in Indiana. Id.
These decisions exemplify the kind of
unprincipled results wrought by the Lemon test.
Under the Lemon test, whether a Foundations
Display is constitutional does not depend on the
20
content and context of the display, but upon how
third parties would perceive the reason for the
display.
Such
unpredictable
findings
demonstrate why the Lemon test must be
replaced with an objective standard which
would find that these passive displays of
historical documents are permissible, noncoercive acknowledgments of religion.
C.
Whether and How Lemon
Should Be Applied Has Also
Left Analyses of Decalogue
Monuments
Hopelessly
Confused.
In Van Orden, this Court determined that
the Lemon test should not be applied to a granite
Ten Commandments monument on the grounds
of the Texas State Capitol. Van Orden v. Perry,
545 U.S. 677 (2005).
Whatever may be the fate of the
Lemon test in the larger scheme of
Establishment
Clause
jurisprudence, we think it not useful
in dealing with the sort of passive
monument that Texas has erected
on its Capitol grounds. Instead, our
analysis is driven both by the nature
of the monument and by our
Nation’s history.
21
Id. at 686. The Court noted that the passive
granite monument was different from other
government acknowledgements of religion such
as prayer and posting of Ten Commandments in
schools. Id. at 691. “The inclusion of the Ten
Commandments monument in this group has a
dual significance, partaking of both religion and
government. We cannot say that Texas’ display
of this monument violates the Establishment
Clause of the First Amendment.” Id. at 691-92.
Since Van Orden, circuit courts analyzing
Ten Commandments monuments have reached
conflicting conclusions about whether to apply
Lemon and if so, whether the monuments are
constitutional.
A few recent examples demonstrate how
the question of whether, when and how Lemon
should apply to passive displays remains
hopelessly confused.
1. Tenth Circuit: Lemon
applies
and
the
monument
is
unconstitutional.
According to the Tenth Circuit, “the
context and apparent motivation of the Ten
Commandments’ placement on the lawn”
outside City Hall in Bloomfield New Mexico “had
the effect of endorsing religion in violation of the
Establishment Clause.” Felix v. City of
22
Bloomfield, 841 F.3d 848, 864 (10 Cir. 2016). The
Felix Court used the Lemon test to find that
“Bloomfield impermissibly gave the impression
to reasonable observers that the City was
endorsing religion.” Id. at 856. The Court
focused particularly on the text of the
monument, its placement on the lawn and its
financing and installation. Id. at 857.
The language on the granite
tablet—taken from the King James
Version
of
the
Bible—
unquestionably has the effect of
excluding the belief systems of
nonadherents….Plaintiffs are a case
in point. As polytheistic Wiccans,
they believe in more than one deity.
The first Commandment, however,
admonishes the reader that “Thou
shalt have no other gods before me.”
(See App. Fig. 1). It is hard to
imagine a religious statement that
is more likely to give Plaintiffs the
impression they do not belong.
Id. at 857-58. Furthermore, the placement of the
monument next to the sidewalk leading to City
Hall meant “[a]n objective observer going to pay
his water bill, or merely driving by in his car,
would associate the Monument with the
government, and accordingly glean a message of
endorsement which the Establishment Clause
23
proscribes.” Id. at 858. Finally, the fact that the
monument was initially erected by itself during
a ceremony that featured religious speech
created a “taint” that was not mitigated by the
presence of other historical monuments. Id. at
864.
Notably, the court acknowledged that
placement of the Ten Commandments amid
other historical monuments as was eventually
done in Bloomfield could change what viewers
perceive as the purpose of the display, as was the
case of the display in Van Orden. Id. at 863.
However, the city’s efforts in that case did not
have that effect. Id. Exemplifying the
uncertainty of the Lemon test, the court said it
could not articulate what measures would be
necessary to remove the religious “taint” from
the display, just that what Bloomfield did was
not enough. Id.
2.
Ninth Circuit: Van
Orden, not Lemon,
applies
and
the
monument
is
constitutional.
The Ninth Circuit read Van Orden as
narrowly eschewing Lemon and creating an
exception for certain Ten Commandments
displays, and found that exception was
applicable to the granite Decalogue in the City
24
of Everett, Washington. Card v. City of Everett,
520 F.3d 1009, 1018 (2008). Again articulating
the uncertainty surrounding Lemon and when it
should be applied, the court said:
We cannot say how narrow or broad
the “exception” may ultimately be; not
all Ten Commandments displays will
fit within the exception articulated by
Justice Breyer [in Van Orden].
However, we can say that the
exception at least includes the display
of the Ten Commandments at issue
here.
Id. In that case, the presence of the monument
on public property, the presence of clergy at the
dedication ceremony and the sacred nature of
the text did not militate against a secular
purpose as the Tenth Circuit found in Felix. Id.
at 1020. Also, while the Tenth Circuit found
that disclaimers on the monument did not
negate the impermissible religious purpose in
Felix, in Card, the Ninth Circuit found that a
statement indicating that the monument was
donated by a third party did militate against a
religious purpose. Id. “[T]his serves to send a
message to viewers that, while the monument
sits on public land, it did not sprout from the
minds of City officials and was not funded from
City coffers.” Id.
25
3.
Eighth
Circuit:
Lemon does not apply
and the monuments
are constitutional.
The Eighth Circuit has twice eschewed
Lemon and applied Van Orden to find that
Decalogue monuments do not violate the
Establishment
Clause.
ACLU
Nebraska
Foundation v. City of Plattsmouth, Nebraska,
419 F.3d 772 (8th Cir.2005) (en banc); Red River
Freethinkers v. City of Fargo, 764 F.3d 948 (8th
Cir. 2014).
In Plattsmouth, the court said:
The Supreme Court’s decision in
Van Orden governs our resolution of
this
case.
Like
the
Ten
Commandments monument at issue
in Van Orden, the Plattsmouth
monument makes passive—and
permissible—use of the text of the
Ten
Commandments
to
acknowledge the role of religion in
our Nation’s heritage.
419 F.3d at 776–77. Similarly, in Red River
Freethinkers the court said:
A passive display of the Ten
Commandments on public land is
26
evaluated by the standard in Van
Orden v. Perry, 545 U.S. at 690–91,
125 S.Ct. 2854, which found Lemon
v. Kurtzman, 403 U.S. 602, 91 S.Ct.
2105, 29 L.Ed.2d 745 (1971), “not
useful in dealing with [a] passive
monument.”
764 F.3d at 949. As was true in Van Orden, and
is true of the monument in this case, the
Decalogue monuments in Plattsmouth and
Fargo had been in place, undisturbed, for
decades, suggesting strongly that
“few
individuals, whatever their system of beliefs, are
likely to have understood the monument as
amounting, in any significantly detrimental
way, to a government effort to favor a particular
religious sect, primarily to promote religion over
nonreligion.” Red River Freethinkers, 764 F.3d
at 950, quoting Van Orden, 545 U.S. at 702
(Breyer, J. concurring).
The court dismissed petitioners’ claims
that a resolution drive prompted by the lawsuit
changed the purpose of the monument because
the resolution drive included Christian
overtones. Id.
The Freethinkers’ lawsuit, and the
various motives of the petitioners
who responded, did not change its
meaning …. A contrary holding—
that an Establishment Clause
27
dispute itself can render a
monument impermissible under the
Establishment
Clause—would
“encourage disputes concerning the
removal of longstanding depictions
of the Ten Commandments ... [and]
thereby create the very kind of
religiously based divisiveness that
the Establishment Clause seeks to
avoid.”
Id. at 950-51, quoting Van Orden, 545 U.S. at
704 (Breyer, J., concurring).
So, as Justice Scalia intimated, the Lemon
test continues to be a docile monster brought out
to strike down passive monuments in some
circumstances but kept restrained in others.
Lamb’s Chapel 508 U.S. at 398-400. Such a
creature might be useful for entertainment, but
it is wholly ineffective as a constitutional
measuring stick. As these cases illustrate, the
only consistency in Establishment Clause
challenges to passive displays of the Decalogue
is the inconsistency of outcome. Legislators,
citizens and judges deserve an objective
standard to guide their decision-making
processes.
28
D.
Contradictory Analyses Of
Passive
Monuments
Containing Crosses And A
Statue Further Illustrate
Why
Lemon
Must
Be
Abandoned.
The utter uselessness of Lemon as a
constitutional yardstick for passive government
monuments that include crosses is best
illustrated by the fractured opinions of this
Court in Capitol Square Review & Advisory
Board v. Pinette, 515 U.S. 753 (1995). Justice
O’Connor found that the reasonable observer
looking at the Ku Klux Klan’s display of a Latin
cross in a plaza next to the state capital “would
view the Klan’s cross display fully aware that
Capitol Square is a public space in which a
multiplicity of groups, both secular and
religious, engage in expressive conduct.” Id. at
782 (O’Connor, J., concurring).
Moreover, this observer would
certainly be able to read and
understand
an
adequate
disclaimer, which the Klan had
informed the State it would
include in the display at the time
it applied for the permit, and the
content of which the Board could
have defined as it deemed
necessary as a condition of
granting the Klan’s application.
29
Id. By contrast, Justice Stevens found:
[A] reasonable observer would
likely infer endorsement from
the location of the cross erected
by the Klan in this case. Even if
the disclaimer at the foot of the
cross (which stated that the cross
was placed there by a private
organization) were legible, that
inference would remain, because
a property owner’s decision to
allow a third party to place a sign
on her property conveys the same
message of endorsement as if she
had erected it herself.
Id. at 806 (Stevens, J., dissenting). Justice
Ginsburg similarly said that a reasonable
observer viewing the stand-alone cross and
aware that “no human speaker was present to
disassociate the religious symbol from the
State….” would conclude that the state endorsed
the display. Id. at 817 (Ginsburg, J., dissenting).
As Justice Scalia observed, the justices’
disagreement about whether the “hypothetical
beholder who will be the determinant of
‘endorsement’ should be any beholder (no matter
how unknowledgeable), or the average beholder,
or (what Justice STEVENS accuses the
concurrence of favoring) the ‘ultra-reasonable’
30
beholder” shows how the endorsement test has
led to “invited chaos.” Id. at 768 n.3.
And, of course, even when one
achieves agreement upon that
question, it will be unrealistic to
expect different judges (or should it
be juries?) to reach consistent
answers as to what any beholder,
the average beholder, or the ultrareasonable beholder (as the case
may be) would think. It is
irresponsible to make the Nation’s
legislators walk this minefield.
Id. The dissonant opinions in Pinette have been
repeated in circuit court cases which have found
monuments containing crosses, and in one case
a statue of Jesus, both constitutional and
unconstitutional using the Lemon test.
Although the cross monuments, such as
the Bladensburg memorial here, are passive
displays similar to the Decalogue monument in
Van Orden, courts have not used the Van Orden
exception, but have continued to use Lemon to
analyze Establishment Clause claims. This
again illustrates the need for this Court to adopt
an objective test.
31
1. Ninth
Circuit:
Mt.
Soledad
cross
unconstitutional, Christ
statue constitutional.
The Ninth Circuit found that the Mt.
Soledad cross, a war memorial similar to the
memorial here, had a secular purpose but an
impermissible effect. Trunk v. City of San Diego,
629 F.3d 1099, 1109 (9th Cir. 2011). While
acknowledging the ubiquity of crosses as
memorials for fallen soldiers, the court
determined that the longstanding use of crosses
as memorials could not overcome the religious
exclusivity message. Id. at 1124-25. 2
The use of such a distinctively
Christian symbol to honor all
veterans sends a strong message of
endorsement and exclusion. It
suggests that the government is so
connected to a particular religion
2
The Eleventh Circuit made a similar
ruling regarding a comparable monument
in the City of Pensacola, Florida.
Kondrat’yev v. City of Pensacola, Florida,
903 F.3d 1169 (11th Cir. 2018), petition for
cert. docketed sub nom., City of Pensacola,
Florida, et al. v. Amanda Kondrat’yev, et
al., U.S., September 18, 2018.
32
Id.
that it treats that religion’s
symbolism as its own, as universal.
To many non-Christian veterans,
this claim of universality is
alienating.
That a cross may be permissible
when it is merely one facet of a
large, secular memorial in which it
does not hold a place of prominence
does
not
speak
to
the
constitutionality of a cross that is
the centerpiece of and dominates a
memorial, the secular elements of
which are subordinated to the cross.
Faced with such a cross, a
reasonable observer would perceive
a
sectarian
message
of
endorsement.
Id. at 1124.
However, when faced with a 12-foot-tall
statue of Jesus Christ on a mountaintop on
leased federal land, a reasonable observer would
not perceive a sectarian message of
endorsement.
Freedom
From
Religion
Foundation v. Weber, 628 Fed.Appx. 952, 954
(9th Cir. 2015). While the cross on a
mountaintop was impermissible, the statue of
Christ on a mountaintop was permissible
because, inter alia, “besides the statue’s
33
likeness, there is nothing in the display or
setting to suggest a religious message.” Id.
The mountain’s role as a summer
and winter tourist destination used
for skiing, hiking, biking, berrypicking, and site-seeing suggests a
secular context; the location does
not readily lend itself to meditation
or any other religious activity, and
the setting suggests little or nothing
of the sacred; …the flippant
interactions of locals and tourists
with the statue suggest secular
perceptions and uses: decorating it
in mardi gras beads, adorning it in
ski gear, taking pictures with it,
high-fiving it as they ski by, and
posing in Facebook pictures; … local
residents commonly perceived the
statue as a meeting place, local
landmark, and important aspect of
the mountain’s history as a ski area
and tourist destination; and,
…there is an absence of complaints
throughout its sixty-year history.
Id. (internal quotations and citations omitted)
That the same circuit could find that a cross
memorializing veterans on a mountaintop
endorses religion and a statue of Jesus on a
34
mountaintop does not endorse religion points to
the absurd results wrought by the Lemon test.
2.
Second Circuit: 9/11
cross
memorial
constitutional.
The Second Circuit’s rejection of an
atheist organization’s challenge to the Cross at
Ground Zero illustrates how the lack of an
objective test invites Establishment Clause
challenges even when there are no religious
undertones in a passive government display.
American Atheists v. Port Authority, 760 F.3d
227 (2nd Cir. 2014). In Port Authority, even the
atheist petitioners agreed that “The Cross at
Ground Zero is a genuine historic artifact of
recovery and healing efforts after the September
11 attacks.” Id. at 239. However, they insisted
that the Port Authority’s actual purpose for
displaying the cross beams from the World
Trade Center “must be religious because the
cross’s particular historical significance derives
from its religious symbolism and devotional
use.” Id. In rejecting that argument, the Second
Circuit noted that there is no precedent from
this Court requiring such a per se attribution of
religious purpose. Id. That, coupled with the
extensive record showing a secular purpose
compelled the conclusion that the memorial
satisfied Lemon’s purpose prong. Id.
35
The court further found that the
“reasonable observer” “would not understand
the effect of [the display] to be the divisive one
of promoting religion over nonreligion.” Id. at
244. “Nor would he think the primary effect of
displaying The Cross at Ground Zero to be
conveying a message to atheists that they are
somehow disfavored ‘outsiders,’ while religious
believers are favored ‘insiders,’ in the political
community.” Id.
The fact that remnants of a destroyed
building that happened to take the shape of a
cross could be challenged as an impermissible
religious symbol when placed in a memorial
illustrates how the failure to articulate an
objective standard for analyzing passive
displays leads to uncertainty and inconsistency.
The lower courts’ opinions in this case offer
further evidence of the unprincipled results
obtained by relying upon Lemon and provide
this Court with the opportunity to finally
jettison Lemon in favor of an objective test.
III.
THIS COURT SHOULD FINALLY
ABANDON THE UNWORKABLE
LEMON TEST IN FAVOR OF AN
OBJECTIVE STANDARD.
The utter confusion illustrated above
demonstrates the urgency of adopting an
objective test that better fits the Founders’
intentions for the Establishment Clause. An
36
objective test would properly differentiate
between permissible public acknowledgment
and impermissible public endorsement of
religion, which would comport with this Court’s
concern that the country continues to honor “the
religious history that gave birth to our founding
principles of liberty.” Elk Grove Unified School
Dist. v. Newdow, 542 U.S. 1, 44 (2004)
(O’Connor, J., concurring). As Justice Scalia
said, “I would prefer to reach the same result by
adopting
an
Establishment
Clause
jurisprudence that is in accord with our Nation’s
past and present practices, and that can be
consistently applied−the central relevant
feature of which is that there is nothing
unconstitutional in a State’s favoring religion
generally, honoring God through public prayer
and acknowledgment, or, in a nonproselytizing
manner, venerating the Ten Commandments.”
Van Orden 545 U.S. at 692 (Scalia, J.,
concurring).
The wide variety of governmental
functions that might be challenged under the
Establishment Clause means that there cannot
be a “one size fits all” test. “Experience proves
that the Establishment Clause, like the Free
Speech Clause, cannot easily be reduced to a
single test. There are different categories of
Establishment Clause cases, which may call for
different approaches.” Bd. of Educ. of Kiryas
Joel Village School Dist. v. Grumet, 512 U.S.
37
687, 720 (1994) (O’Connor, J., concurring in
part).
It is always appealing to look for a
single test, a Grand Unified Theory
that would resolve all the cases that
may arise under a particular
Clause. There is, after all, only one
Establishment Clause, one Free
Speech
Clause,
one
Fourth
Amendment, one Equal Protection
Clause. See Craig v. Boren, 429 U.S.
190, 211, 97 S.Ct. 451, 464, 50
L.Ed.2d 397 (1976) (Stevens, J.,
concurring).
But
the
same
constitutional principle may operate
very
differently
in
different
contexts. We have, for instance, no
one Free Speech Clause test. We
have different tests for contentbased speech restrictions, for
content neutral speech restrictions,
for restrictions imposed by the
government acting as employer, for
restrictions in nonpublic fora, and so
on. This simply reflects the
necessary recognition that the
interests relevant to the Free
Speech Clause inquiry – personal
liberty, an informed citizenry,
government efficiency, public order,
and so on – are present in different
degrees in each context. And setting
38
forth a unitary test for a broad set of
cases may sometimes do more harm
than good. Any test that must deal
with widely disparate situations
risks being so vague as to be
useless…. Lemon has, with some
justification, been criticized on this
score.
Id. at 718-19. As is true with Free Speech cases,
Establishment Clause challenges involve
different contexts, including: 1) government
action targeted at particular individuals or
groups, 2) government (acknowledgment or)
speech on religious topics, 3) government
decisions involving religious doctrine and law
and 4) governmental delegations of power to
religious bodies, under which the issues
underlying the clause will operate quite
differently. See id. at 720. In other words, there
are different standards and concerns with
funding cases, church property or employment
disputes, and government acknowledgments of
religious expression. Establishment Clause
concerns are more heightened in the former two
than in the latter. Government funding of
religious activities or judicial inquiry into
church practices to resolve property or personnel
matters are more likely to raise Establishment
Clause concerns than are “under God” in the
Pledge of Allegiance, “In God We Trust” on our
currency, passive displays that include the
39
Decalogue, war memorials that include crosses,
as is the case here, or stand-alone granite
Decalogue monuments.
Lemon has proven incapable of separating
a real threat from a harmless shadow, an
establishment
of
religion
from
an
acknowledgment.
As
Justice
O’Connor
cautioned, “the bad test may drive out the good.
Rather than taking the opportunity to derive
narrower, more precise tests from the case law,
courts tend to continually try to patch up the
broad test, making it more and more amorphous
and distorted. This, I am afraid, has happened
with Lemon.” Grumet, 512 U.S. at 720.
This case is the latest example of the truth
of Justice O’Connor’s conclusion. The various
patches applied to Lemon, including the
“endorsement” test, have only added to the
confusion
that
has
left
this
Court’s
Establishment
Clause
jurisprudence
“in
hopeless disarray.” Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U.S. 819, 861 (1995)
(Thomas, J., concurring).
Instead of continuing to patch up Lemon,
this Court should undertake an objective
analysis for Establishment Clause challenges of
government observances and displays:
If a religious observance or display
(A) comports with history and
ubiquity, and (B) does not
objectively coerce participation in a
40
religious exercise or activity, then it
is a permissible acknowledgment of
religion, not a violation of the
Establishment Clause.
A.
History And
Ubiquity,
Properly Applied, Would
Distinguish
Acknowledgment
From
Establishment.
This Court has found historical meaning
to be relevant in upholding legislative prayers,
property tax exemptions, crèches, and granite
Decalogue monuments. Van Orden, 545 U.S. at
686. Ubiquitous practices that comport with our
nation’s
history
constitute
permissible
acknowledgment,
not
impermissible
establishment, of religion. Lynch, 465 U.S. at
693 (O’Connor, J. concurring); Pinette, 515 U.S.
at 780 (O’Connor, J., concurring).
A practice is ubiquitous when it is
“observed by enough persons” to warrant the
term. Elk Grove, 542 U.S. at 37 (O’Connor, J.,
concurring). Ubiquity is less helpful than
history. Every practice has had small
beginnings, and some practices create new
arrangements based on old traditions. Each
Presidential invocation of God is both new and
old. State mottos, constitutional preambles, the
Pledge of Allegiance, and crèche displays began
at a point in history. Pressing ubiquity too much
41
would mean crèches were once impermissible
but are now permissible because more people
celebrate Christmas. At an extreme, an
established church could become permissible
because most people have acted in a way over
time to establish religion.
Ubiquity is helpful only to the extent that
it illuminates historical tutelage, one of the two
aspects of history, the other being historical
meaning. Historical tutelage looks at historical
practices to distinguish between mere shadows
of religious acknowledgment versus real threats
of establishment. References to God in the
country’s mottos, constitutions, historical
documents and memorials have neither
established nor tended to establish religion and
would, therefore, be regarded as mere shadows
of
religious
acknowledgment,
not
establishments.
Whether an acknowledgement of religion
has sparked controversy is not helpful in
discerning between acknowledgment and
establishment. Longstanding practice and the
lack of controversy do not create “a vested or
protected right” to violate the Constitution. Elk
Grove, 542 U.S. at 39. However, the presence of
controversy can undercut a constitutional
practice. Id. Litigation is, by definition, a
controversy. Relying upon controversy could
create a “heckler’s veto,” as happened in this
case, which would doom not only monuments,
but such acceptable practices as Sunday closing
42
laws, school funding, and legislative prayer, all
of which the Supreme Court has upheld as
constitutional. See e.g., Town of Greece v.
Galloway, 572 U.S. 565. 587-88 (2014).
What is relevant, then, is whether history
reveals that a practice has established or tended
to establish religion. A historical analysis should
look for the best understanding of the purposes
of the Establishment Clause for which there is
some agreement. Some general assumptions
regarding the meaning of the Establishment
Clause include that government cannot
establish a church, discriminate among sects, or
objectively compel a certain sectarian belief.
This Court has declared that the
Establishment Clause permits government
funding of religious activities or education in the
form of vouchers, scholarships, transportation,
books, teaching materials, projectors, onsite
training by public school teachers, interpreters,
remedial education, buildings, revenue bonds,
and construction grants. 3 The Court has also
See e.g., Zelman v. Simmons-Harris, 536
U.S. 639, 667-68 (2002) (vouchers); Zobrest v.
Catalina Foothills Sch. Dist., 509 U.S. 1 (1993)
(interpreters); Bowen v. Kendrick, 487 U.S. 589
(1988) (counseling); Witters v. Washington Dept.
of Servs. for the Blind, 474 U.S. 481 (1986)
(scholarship); Mueller v. Allen, 463 U.S. 388
(1983) (tuition tax deduction); Board of Educ. v.
Allen, 392 U.S. 236 (1968) (textbook loans).
3
43
said that property tax exemptions, a
government-funded hospital run by a Roman
Catholic order, and Medicare funds used by
sectarian healthcare providers pose no
constitutional problem. 4 Although a guiding
principle in government funding cases centers
on neutrally available benefits and private
choices, the fact remains that the religious
mission of the institution is advanced. If the
Establishment Clause is not violated in (at least
indirect) government funding of sectarian
institutions and education which advances the
religious mission, then it cannot be violated by
the mere presence of a passive display of a Latin
cross amid other war memorials. If funding
cases have not raised the shadow of an
established religion, then passive displays will
not. Surely this Court is “unable to perceive the
Archbishop of Canterbury, the Vicar of Rome, or
other powerful religious leaders behind every
public acknowledgment of the religious heritage,
long officially recognized by the three
constitutional branches of government. Any
notion that these symbols pose a real danger of
See e.g., Zelman, 536 U.S. at 667-68; Walz
v. Tax Comm’n, 397 U.S. 664, 674 (1970)
(property tax exemption); Quick Bear v. Leupp,
210 U.S. 50 (1908) (treaty and trust funds for
religious education); Braunfield v. Roberts, 175
U.S. 291 (1899) (religious hospital).
4
44
establishment of a state church is farfetched
indeed.” Lynch, 465 U.S. at 686.
B. Objectively
Non-Coercive
Historical Practices Do Not
Offend the Establishment
Clause.
True, objective coercion has always been
and remains inimical to the Founders’ vision
and impermissible under the Establishment
Clause. Van Orden, 545 U.S. at 693-94 (Thomas,
J. concurring). The Framers understood that an
establishment necessarily involved “actual legal
coercion.” Id. at 693. “The 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). “Typically,
attendance at the state church was required;
only clergy of the official church could lawfully
perform sacraments; and dissenters, if tolerated,
faced an array of civil disabilities. L. Levy, THE
ESTABLISHMENT CLAUSE 4 (1986).” Id. “Thus, for
example, in the Colony of Virginia, where the
Church of England had been established,
ministers were required by law to conform to the
doctrine and rites of the Church of England; and
all persons were required to attend church and
observe the Sabbath, were tithed for the public
support of Anglican ministers, and were taxed
45
for the costs of building and repairing churches.
Id., at 3-4.” Id. at 641-42. “In other words,
establishment at the founding involved, for
example, mandatory observance or mandatory
payment of taxes supporting ministers.” Van
Orden, 545 at 693 (Thomas, J. concurring).
“[G]overnment practices that have nothing to do
with creating or maintaining ... coercive state
establishments simply do not implicate the
possible liberty interest of being free from
coercive state establishments.” Id. at 693-94.
Government acknowledgments of religion
are pervasive. The mere presence of a religious
symbol or statement that is pervasive
historically and physically does not send a
message of compulsion. Acknowledgments such
as passive displays are far less likely to pose a
real threat of coerced belief than the state
churches that were a concern for the Founding
Fathers. References to God and religion in our
Nation are “the inevitable consequence of the
religious history that gave birth to our founding
principles of liberty.” Elk Grove, 542 U.S. at 39.
The “Establishment Clause permits
government some latitude in recognizing and
accommodating the central role religion plays in
our society.” County of Allegheny, 492 U.S. at
657 (Kennedy, J., concurring in part, dissenting
in part). “Noncoercive government action within
the realm of flexible accommodation or passive
acknowledgment of existing symbols does not
violate the Establishment Clause unless it
46
benefits religion in a way more direct and more
substantial than practices that are accepted in
our national heritage.” Id. at 662-63. The
presence of a granite depiction of the Decalogue
does not “coerce anyone to support or participate
in any religion or its exercise” and does not “give
direct benefits to a religion in such a degree that
it in fact establishes a state religion or tends to
do so.” Id. at 659. “[I]t would be difficult indeed
to establish a religion without some measure of
more or less subtle coercion, be it in the form of
taxation to supply substantial benefits that
would sustain a state-established faith, direct
compulsion to observance, or governmental
exhortation to religiosity that amounts in fact to
proselytizing.” Id. at 659-60. “Absent coercion,
the risk of infringement of religious liberty by
passive or symbolic accommodation is minimal.”
Id. at 662.
Focusing on coercion in the form of legal
compulsion would comport with the Supreme
Court’s
historical
Establishment
Clause
jurisprudence and with the Framers’ intent.
This more objective standard would relieve the
confusion and chaos that Lemon has spawned
and would provide local governments with the
kind of definitive guidance that is necessary to
retain
historically
significant
religious
observances without fear of being sued by
offended observers.
If the Establishment Clause reaches its
apex in government funding of sectarian
47
institutions and permits funding that at least
indirectly advances the religious mission, then a
passive display of a cross commemorating war
dead must be found to comport with the
Establishment Clause. If governmental funding
has not raised the shadow of an established
religion, then the World War I memorial
standing for nearly 100 years certainly cannot.
The existing analytical standard that
permitted the Fourth Circuit to reach the
“farfetched” conclusion, see Lynch, 465 U.S. at
686, that a nearly 100-year-old war memorial
containing a cross violates the Establishment
Clause must be re-examined and replaced.
CONCLUSION
This case presents another opportunity to
finally overrule and permanently inter the
unworkable and ineffective Lemon test and
replace it with an objective standard based upon
history and coercion. Amicus respectfully urges
this Court to do so.
48
Dated: December 21, 2018.
Mathew D. Staver
(Counsel of Record)
Anita L. Staver
Horatio G. Mihet
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
(407) 875-1776
court@lc.org
Mary E. McAlister
LIBERTY COUNSEL
P.O. Box 11108
Lynchburg, VA 24506
(407) 875-1776
court@lc.org
Attorneys for Amicus
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