The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I've been backlogged on various projects recently, so I haven't blogged as much as I'd have liked about many things, including the Court's latest Establishment Clause case. But I thought that I'd pass along this analysis of the briefs in the case from Eric Rassbach of the Becket Fund; unsurprisingly, it track some of the analysis in the Becket Fund's own brief, but I still found to be an interesting, if opinionated, guide.
My own view is that both the Lemon v. Kurtzman test and the endorsement test have ultimately failed to deliver workable legal rules; and I think they have exacerbated religious tensions in American life, even though they have often been advocated as means of supposedly reducing such tensions. I'm also generally inclined towards Becket's history-based approach; though it can yield its own uncertainties, I think it's likely to be better than the current mess. (I have no firm views on the standing argument that Becket makes in Part II of its brief.) In any event, though, here's Eric's analysis; I'd also be glad to post other interesting perspectives from people who have been closely following the case, if anyone wants to pass them along.
The American Legion Briefing: Four Characters in Search of an Establishment Clause Standard [by Eric Rassbach]
The Maryland Peace Cross case, American Legion v. American Humanist Association, will be argued on February 27. The briefs are now in, and the arguments are shaping up much as my colleague Luke Goodrich predicted they would: some people still want the Supreme Court to save the notorious Lemon test from a well-deserved death, some want the Court to punt, some want the Court to adopt a coercion standard, and some want the Court to focus on the historical elements of an establishment of religion. There are thus four main groups of characters searching for an Establishment Clause standard:
First, the plaintiffs American Humanist Association and some of their amici want to save the Lemon test, arguing at times fantastically that Lemon "has brought clarity and consistency to religious-display cases." But there is an air of defeat surrounding this position; it feels like a last stand. Typical in this regard is the amicus brief of Professor Douglas Laycock, which dwells at length (pp. 31-37) on how the Court might uphold the Peace Cross without changing much else in Establishment Clause doctrine. Professors Walter Dellinger and Marty Lederman even filed in support of neither party, saying that this particular Peace Cross ought not be a problem, but other ones they can imagine probably would be. If they think an Establishment Clause case is a loser, it's a loser.
More fundamentally, the Diehards' position is doctrinally adrift. Because Lemon doesn't provide a coherent rule, but the Diehards can't let Lemon go, their briefing often devolves into "here's a bunch of facts about why we should win." These repeat church-state litigants would be better served by renouncing Lemon and starting anew with a more intellectually coherent foundation for their position. In any case, they haven't offered one to the Court here.
Another possible outcome for American Legion is a punt. That is, the Court could again avoid dealing with Lemon and apply a totality-of-the-circumstances test. As with previous decisions in this genre (e.g., Van Orden, Buono), such a decision would be valid for one journey only, and would provide no meaningful guidance to the lower courts.
Nevertheless, the Maryland-National Capital Park and Planning Commission defendants ask the Court to do just that—arguing that "the Court should not revisit [its] precedents here," but should instead uphold the cross "under existing law," which "would provide substantial clarity for lower courts" and would avoid "generat[ing] deep religious divisions."
Whatever the motive behind this position, it is willfully blind to the reality of Establishment Clause litigation nationwide. As multiple Justices and lower court judges have lamented, the Court's precedents already "generate deep religious divisions." And far from providing "clarity," using existing law (read: Lemon) to decide American Legion would keep lower courts and local governments in the state of Establishment Clause purgatory they've been lamenting for decades.
The Abstract Expressionists
By contrast, the American Legion defendant-intervenors offer a rule, but it is still not quite right. They say that history—and specifically Town of Greece's "historical practices and understandings"—ought to be the Court's guiding principle. So far, so good. But then they take a second step, attempting to reduce all of that history to a single principle: no coercion. There are three problems with this approach.
The first is that as a matter of history it simply isn't true. Professor McConnell's scholarship identifies six characteristics of a religious establishment during the founding era, and in their opening brief the American Legion defendants dwelled at length on those characteristics and Professor McConnell's scholarship. But not every one of the six characteristics of historical establishments is in fact rooted in coercion.
For example, a formal government proclamation of an official state church, with nothing more, is not coercive, though it would certainly have been a problem for the founding generation. The American Legion defendants say in their reply brief that such actions, though "arguably non-coercive," should nevertheless be treated as coercive. But relying on "arguably non-coercive" actions to be deemed coercion simply demonstrates the standard's unworkability. Similarly, government funding—particularly from non-tax revenue streams like park fees or rental income—is not always coercive, even though from a historical perspective the source of the funding would be largely irrelevant.
Second, even where coercion could be alleged, a coercion test does not provide a clear rule of decision. For example, all taxes can in some sense be viewed as coercive, but not all tax-supported funding of religious organizations is unconstitutional. Some funding is problematic—like when the government gives aid exclusively to religious groups for religious purposes. But other funding is permissible—like when government broadly funds both religious and nonreligious groups. The "coercion" test can't distinguish among these types of funding.
Third, like abstract art, abstract legal terms like "coercion" can mean different things to different people. That makes them poor rules of judicial decision. Take the idea of government "endorsement"—the Jackson Pollock of legal ideas. Different courts have taken radically different views about whether a particular government practice "endorses" religious belief or practice. To a certain degree, endorsement is in the eye of the beholder, which is why the endorsement test vexes lower courts and local governments alike.
But the American Legion defendants would replace one Rorschach test with another, because "coercion" is almost as abstract an idea as "endorsement." It is not too hard to imagine scenarios where almost any challenged practice—the Pledge of Allegiance, "In God We Trust" on the currency, or Moses in the courtroom frieze—would be seen as coercive by some (very sincere) litigants. Indeed, in this very case the plaintiffs argue that the Peace Cross is coercive. The upshot is that adopting a coercion standard would put the Court back into the "heaven of legal concepts" it is trying to escape.
A simpler rule is the one we offered in our amicus brief: a government practice violates the Establishment Clause only if it shares the characteristics of a historical establishment—as determined by objectively known "historical practices and understandings" at the time of the Founding. And as Professor McConnell has demonstrated, history discloses six main characteristics of a historical establishment: (1) government control over doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions.
The historical approach gets the balance between church and state correct. It forbids the state from controlling religious doctrine, compelling religious observance, or providing exclusive funding for religious institutions. But it also avoids needlessly hostility toward religion in the public square.
Several of the briefs criticize our proposed approach. The American Legion defendants say their "general coercion standard" is superior to a historical test for three reasons: (1) "because coercion is the common denominator underlying" the six hallmarks of a religious establishment; (2) because a general coercion test "would likely be more manageable to apply, and (3) because a general coercion test "has already been adopted in this Court's cases[.]" None of these distinctions has merit.
First, as noted above, coercion is not a common denominator of the six characteristics of a historical establishment. Coercion offers no basis for distinguishing between permissible and impermissible types of government funding of religion. It also fails to address non-coercive actions like the use of non-tax government revenues or a government proclamation that "Zeus is Lord of America." Since coercion and history are not coextensive, and the coercion principle is based on history, coercion cannot be a common denominator because it is underinclusive.
Similarly, in practice coercion will also be overinclusive, because the abstract nature of the coercion inquiry will mean that many practices—including passive displays like the Peace Cross—will, for some judges in some locations, be considered coercive. In short, the American Legion defendants are incorrect when they state that "either formulation will lead to the same results."
Second, for the reasons stated above, a coercion test will not be more manageable because its abstract nature would divorce the judicial inquiry from concrete historical fact.
Third, a historical approach has been used by the Supreme Court both in deciding cases like Everson and more recently in cases like Town of Greece. The problem is not that the test has never been used—it is that it has been used inconsistently.
There a few other criticisms of the historical approach. At one point, Doug Laycock claims it is an "anything goes" standard. But this is also not true. As we have pointed out, the historical approach aligns with the outcomes in this Court's Establishment Clause cases since 1947.
Similarly, one of the amicus briefs decries the idea that "eighteenth century apples" can be compared to "twenty-first century oranges". But this is a silly attack on the judicial use of history altogether and belies the general trend in Bill of Rights jurisprudence towards a historical approach, not to mention Town of Greece. If one cannot look at eighteenth century apples, then much of the Supreme Court's jurisprudence in many other areas of the law must go.
In short, there are good reasons to adopt the historical approach, and no plausible reason not to adopt it.
The End, or A Beginning?
As the briefing shows, there are four main paths the Court can follow with respect to the governing Establishment Clause standard. Those paths lead in very different directions. Lemon is a dead end. Punting would leave the courts stuck in the Lemon dead end. A reductio ad coercion would mean decades of wandering in a different wilderness of abstraction.
Only the historical approach offers a method of deciding Establishment Clause cases that can be built out over the long term. Future cases can investigate how the founders thought about funding, or government proclamations, or displays on coinage, and the like. But for now it is enough to undertake a new beginning for Establishment Clause jurisprudence by grounding it in history.