Establishment Clause

"The American Legion Briefing: Four Characters in Search of an Establishment Clause Standard"

An analysis of the amicus briefs in the Establishment Clause / cross monument case, from Eric Rassbach at the Becket Fund.


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:

The Diehards

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.

The Punters

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.

The Historians

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.

NEXT: Prosecutors Violated the Rights of Jeffrey Epstein's Victims

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  1. “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”

    This interests me because this is the test I would like to see the Court adopt on the Second Amendment. A government practice violates the Second Amendment only if it shares the characteristics of a historically impermissible infringement rather than a permissible regulation of the militia.

    Alas, I suspect neither historical approach will get 5 votes. 🙂

    1. Small problem, The federal government didn’t enact any kind of regulation of arms (except perhaps import controls) until the NFA was passed in 1934. Well after 14A got SCOTUS to start applying the BOR amendments to the States. And even then, they did not officially incorporate 2A until Heller.

      So, how do you intend to identify anything that might have been considered an “impermissible infringement” say before the Civil War?

      Even if you could convince the modern SCOTUS to adopt this historical view, I rather doubt you could convince them that federal inaction on an issue identifies such infringements.

      1. Matthew, there were state constitutions, state rights to keep and bear arms, and state regulations of arms.

        Plus, there’s the text of the constitution itself, and the Militia Act passed by the first Congress. All of which strongly indicate that the intention of the 2nd Amendment was to create a Switzerland-style armed populace that would be brought to the defense of the state by service in the militia.

        Basically, the great crime would be to take the 2nd Amendment, which was clearly about civil defense and individuals owning guns, subject to governmental training, discipline, and command, that they could bring to bear in defense of the Republic and their collective security, and interpret it instead to impose the ideology of the anarcho-libertarian separatists building their arsenals for a final showdown with the government. A historical approach is the best way to avoid that.

        1. “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. . . . Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. . . . Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. ”

          James Madison, Federalist 46, sounding a lot like an anarcho-libertarian separatist ready to make war on the federal government.

          1. I don’t know what either of you mean by anarcho-libertarian. But Madison was talking about organized militia run by “State governments” “amounting to near half a million of citizens. . . conducted by governments” repelling the feds’ regular army.

            1. Madison treats the advantage of an armed populace as independent of the organized State militias. There’s the “advantage of being armed” and there’s “the existence of subordinate governments,” which is a separate advantage.

              Madison makes the same distinction when discussing Europe. He claims that an armed populace might have been enough to overthrow the despots in Europe, but if they had the additional advantage of subordinate governments they surely would have been able to do so.

              1. The problem with that Madison quote is it contradicts the text.

                Levying war against the United States is prohibited in the Constitution. Indeed, it is the ONLY provision of the original Constitution that specifically binds ordinary citizens.

                So you can’t say the purpose of the Second Amendment is to permit the levying of war against the United States. Especially since the text of it says it is so the public can be armed to come to the defense of the United States.

                The Constitution flatly prohibits the “building the arsenal for the final showdown” ideology. It contemplates an armed populace, protects your right to own and carry your firearms, and permits the government to regulate your gun ownership as a member of the militia.

                1. “So you can’t say the purpose of the Second Amendment is to permit the levying of war against the United States.”

                  I didn’t say that. The purpose of the Second Amendment is very clearly expressed in the Second Amendment itself: to prevent the abridgement of the preexisting right to keep and bear arms. Among the many reasons for protecting that right, however, is to permit armed resistance to government tyranny, should it become necessary. If it comes to that, the Constitution failed and any prohibitions in it don’t amount to anything.

                  “Especially since the text of it says it is so the public can be armed to come to the defense of the United States.”

                  That’s not what the text says, and really doesn’t make much sense. There’s already a Militia clause in Article I, Section 8 that empowers Congress to arm and regulate the Militia. What does your view of the Second Amendment add to that?

  2. Why not use a hybrid of both history and coercion? As the 8th Circuit wrote last year, applying Town of Greece to an Establishment Clause challenge to the national motto on currency:

    “This two-fold analysis is complementary: historical practices often reveal what the Establishment Clause was originally understood to permit, while attention to coercion highlights what it has long been understood to prohibit.”…..64440P.pdf

    1. That seems like it has a good possibility of being where we end up.

  3. “a government practice violates the Establishment Clause only if it shares the characteristics of a historical establishment”

    The up side for the Court is that it will never have to hear an Establishment Clause case again because no US government action has been an “historical establishment” since Massachusets abolished its established church 180 years ago.

  4. “In short, there are good reasons to adopt the historical approach, and no plausible reason not to adopt it.”

    Doesn’t #3 blow the cross out of the water (or street in this case)?

    The govt spends some amount of funds on the figure for maintenance (grass, weeds?), maybe lighting, road signs around the cross to steer motorists around it, etc.

    But it really comes down to fairness and the equal application of law.

    How can a citizen believe their government represents their interest when the government entity (e.g. town council, school teacher, judge, etc) is proselytizing or making decisions based on their religious book (on govt time of course – not talking about private time), when that citizen does not share the same beliefs?

    1. The 1A deals with an established church, which is a church that 1) some or all of the clergy/bishops are appointed by the government and/or 2) the government pays the clergy.

      1. No it says “respecting an establishment of a religion” not an established church.

        1. “establishment” means what I said it does

          Arguably the “respecting” meant Congres could not interferewith sttae estyablished religions.

          Religion and church are intergcahangable. The 1780 Massachussets consitution provision did not mention the word “church”:

          “To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.”

          1. Did you ever read Madison’s Detached Memoranda? How does your sentiment square with such?

          2. Bob, are you familiar with the SCOTUS 1947 Everson v. Board of Education ruling? It outlines the four things prohibited by the Establishment Clause :

            1) “Neither a state nor the Federal
            Government can set up a church.

            2) “Neither can pass laws which
            aid one religion, aid all religions,
            or prefer one religion over another.

            3) “No tax in any amount, large or
            small, can be levied to support any
            religious activities?

            4) “Neither a state nor the Federal
            Government can, openly or secretly,
            participate in the affairs of any
            religious organizations or groups?”

            ?seems about right to me as mostly adequate separation of church and state.

  5. Studying Lemon in middle school is what turned my head towards the law. Perverse, I know.

    It is hard to argue that Lemon provided any kind of certainty. Endorsement ended up being similarly up to the vagaries of individual judicial discretion as well.

    But history would effectively be just ignoring the whole issue, as Bob noted. Research on historical practices are not going to have much to do with the modern, more secular age. Which means functionally, that would be a lurch towards state religiosity if not establishment. Welcome back prayer in schools!

    Based on past historical law-based SCOTUS rulings (speech and Commerce Clause spring to mind), I very much doubt you’ll find more certainty in the Founding generation’s faith or understanding of how church and state should interact.

    Something should be done, but just because historical spelunking is something doesn’t mean it should be that.

    1. “more certainty in the Founding generation’s faith or understanding of how church and state should interact”

      There were multiple established churches in 1789. I think they had a pretty good idea.

      “Welcome back prayer in schools!”

      Its like the Free Exercise clause is just not there.

      1. That doesn’t tell us anymore than the fact that there were unreasonable state and local searches and seizures before the 14th Amendment would tell us about the 4th Amendment.

        Also, there are counterexamples. Wall of separation, Treaty of Tripoli, etc.

        1. Wall of separation is just Jefferson.

          Of course the Treaty of Tripoli said it was not a Christian nation, Congress in the1A had no power to declare it so. States, however, did have established Christian sects.

          1. Dilan’s thesis looks to be only that there is ambiguity sufficient for cherry picking, which from your post it looks like you concede, even if in your opinion the weight comes down one way.

      2. There were multiple established churches in 1789. I think they had a pretty good idea.

        Irrelevant because of Incorporation. Unless you roll that back, we’re playing under different rules.

  6. It is not clear to me how many of the criteria a practice needs to meet to be considered an establishment.

    Regardless, since a government proclamation that “Zeus is Lord of America” seems to meet none, I don’t see how such a proclamation would be unconstitutional under the proposed test.

    Nor, for that matter, would practices such as classroom prayer.

  7. Doug Laycock’s brief for Christian and Jewish organizations makes a powerful argument for the inter-faith neutrality principle: The two opening paragraphs:

    This case squarely presents for the first time whether government can sponsor the most fundamental, most sacred, and most exclusively Christian of all religious symbols: the Latin cross. Whenever in this brief we refer to the cross, we mean the Latin cross?the cross that most closely resembles the cross of the crucifixion, the cross that is instantly recognized as the preeminent symbol of Christianity.

    Using the cross to honor our nation’s war dead reflects either the erroneous assumption that our military is comprised entirely of Christians, or the equally erroneous assumption that the most sacred symbol of Christianity somehow honors non-Christians as well. But the reason the cross honors the Christian war dead is that for Christians, it symbolizes the promise of eternal life. And in one widely known understanding of Christianity?an understanding the Commission cannot effectively disclaim?failure to accept God’s offer of salvation through Christ leads to eternal damnation. Petitioners’ claim that the cross has a predominantly secular meaning would desacralize the most sacred symbol of Christianity.

    1. Yes.

      I thought it amazing that Scalia could claim that the cross was not a strictly Christian symbol in this context.

      1. I thought it amazing that Scalia could claim that the cross was not a strictly Christian symbol in this context.

        I generally liked Scalia’s jurisprudence, but that was one of the dumber things he ever said. A Jew would have no grave marker of any sort before he’d have a cross to mark his grave.

    2. There’s an issue that comes up with crosses and with some similar things.

      And that is, if we take religious believers seriously, a particular symbol has a very specific meaning, tied deeply to the devout beliefs of the faithful.

      But on the other hand, if we look at the way people actually treat it, the religious aspect of it is extremely light.

      For instance, Christmas. Obviously, if you are a devout Catholic, Christmas has an extremely specific meaning. And various governmental recognitions of Christmas should therefore raise Establishment Clause problems.

      But Christmas, in American culture, really doesn’t mean that anymore. It’s just a random winter celebration where we stand in long lines at airports, go shopping and then go back to return gifts, put our kids on the lap of a smelly stranger in a red suit and fake beard, etc. And governmental recognition of Christmas, seen that way, raise no Establishment Clause problems at all.

      Lots of things are like that. Sunday closing. Easter. Saying “bless you” after someone sneezes. Swearing on the Bible “so help me God”. St. Patrick’s Day. The Red Cross.

      It may be that this case presents a similar thing. Yeah, devout Christians see the cross on a grave as a symbol of the promise of eternal life. But lines of crosses of a cemetery, or a cross at the side of the road, often have a secular meaning as well– just marking a grave. Lots of people see such crosses and probably don’t even think about the religious implications.

      1. But lines of crosses of a cemetery, or a cross at the side of the road, often have a secular meaning as well– just marking a grave.

        Most non-Christians, seeing a cross on a grave or memorial, will interpret it as a Christian religious symbol. I am very confident that the vast majority of Jews would be quite upset at the idea of a cross marking the graves of their parents, or ultimately their own.

        I don’t know about other non-Christians, but my guess is that they would feel the same.

      2. But Christmas, in American culture, really doesn’t mean that anymore. It’s just a random winter celebration where we stand in long lines at airports, go shopping and then go back to return gifts, put our kids on the lap of a smelly stranger in a red suit and fake beard, etc. And governmental recognition of Christmas, seen that way, raise no Establishment Clause problems at all.

        As a Jew, I beg to differ. Christmas is a Christian holiday. All those things are something Christians do.

        1. Having professed no particularly spirituality for many decades but with mostly happy childhood memories of specifically Christian Christmas traditions, I’m understand I’m desensitized to their impact to non-Christians in a way that someone without that background would not be.

          Still, about 80% of the Christmas season behavior seems mid-winter festiveness, not religious worship. I’ll posit that even to most self-identified Christians, Christmas is less a solemn religious observance than the same Winter Festival celebrated around the solstice it’s been throughout human history…and there’s nothing wrong with that.

          Much of what are now thought of as Christmas traditions predate Christianity. Celebrations with torches and bonfires (lights in the darkness); with evergreens showing that life persists through cold and darkness; with feasts and gatherings of friends and family; with exchanging gifts; with music, poetry and retelling the stories of our own community history, and of myths about messengers from [the] god[s] proclaiming the birth of one who will deliver us?all existed long before Jesus.

          Societies throughout history have celebrated as the nights, which for months had been getting longer, start getting shorter again. That celebration existed before anyone dreamed of Christianity and will likely continue long after Yahweh and Jesus join Odin, Thor, Zeus, Apollo, Mithra, and Horus in myth.

          1. Yep. And specific to David’s point, plenty of American Jews celebrate the secular aspects of Christmas.

            1. I mean, when you’re talking about millions of people, for some interpretation of “plenty,” plenty of people do just about anything. But only a small minority of Jews celebrate Christmas in any way — well, other than Chinese food and movies. (I don’t know precisely what you mean by “the secular aspects of Christmas,” anyway. Do you mean going over to a Christian friend’s house for a holiday party or the like?)

              1. I agree with David here and would like to add that even if Dilan and Purple Martin had some point wrt Christmas, it absolutely would not extend to grave markings, which is the analogy Dilan was trying to draw.

                I think the closest some Jews get to “celebrating Christmas” is putting up a tree, but I don’t think this is particularly common. I know that I, despite not being particularly observant, would never do that.

                1. I don’t think this is particularly common

                  In the 19th century, at a time when Reform Judaism in the U.S. was pushing an extreme form of assimilation, there were more Jews who did so. (That was at a time when some even argued for moving Shabbat to Sunday to ‘fit in.’) But those days are long past ? the Pittsburgh Platform is dead. The only Jews putting up Christmas trees nowadays, I think, are those in or from mixed marriages.

  8. I’m kind of partial to the Potter Stewart test. (“I know it when I see it”) and the duck test (“if it walks like a duck,” etc.)

    I don’t think the presence of the cross would be a problem so long as other religions represented in the cemetery get to put up their own symbols. I’m thinking so far as possible basing this on the actual religious affiliation of the dead, and allowing a “close enough for government work” representative of their religion to choose an appropriate symbol.

    1. The cross that is the subject of the lawsuit is in located squarely in the middle of a major highway intersection, not a cemetery. Families of vets buried at Arlington choose whether to have a religious symbol mark the grave, and can choose from among the symbols of many faiths.

      1. Does Google Maps have a good image?

          1. Hmmm…just add “bladensburg, Md” and see what happens.

      2. As I understand, It also contains the names of several hundred local men who died in war. Given the demographics of the area and time, it is likely that at least a few of those men were Jewish.

        If their names are on the monument, they are either being marked with religious belief they didn’t have. If their names are not on the monument, then it doesn’t honor all war dead and instead constitutes direct government support of a solely Christian monument.

        1. Well, I thought it was a cemetery of some kind.

          Apparently it’s not.

  9. I worship Democratic legislators as symbols of the God Progresseva, therefore, all Democratic legislators must be removed from public buildings.

  10. 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.

    I’m not sure that this would be true at the state level as opposed to the federal level.

    All of the original founding states had official state sanctioned churches. While some were disestablished in the early 19th century, the last State level established church was not disestablished until after the ratification of the 14th amendment.

    1. It is not clear to me, under the Becket argument, why such a proclamation would violate the Establishment Clause. It meets none of the six criteria, unless you want to be silly and say that the negligible administrative cost of issuing the proclamation is “financial support of the established church.”

      I’d say that’s a pretty big hole in their argument. You could fly a 747 through it.

    2. The reason we have the Establishment Clause along with the Free Exercise Clause was because the various churches were preexisting power structures that were an important check on tyranny. So churches had power and a tyrant would either need to gain control of the church or somehow dissolve the church and create a new religion which is what communists did. So the notion the Establishment Clause should be incorporated is overreach because it is clearly a federalism provision.

      Why anyone would care if North Dakota establishes a church is beyond me especially in light of Europe’s state churches clearly resulting in more secular societies.

      1. Why anyone would care if North Dakota establishes a church is beyond me

        Think harder.

  11. For several years in the late ’90’s I lived in Annapolis, MD and commuted into DC on Route 50 (John Hanson Highway). When (as often happened) traffic on Route 50 was tied up, the traffic reporter on WTOP radio would recommend the Peace Cross route as an alternative, which I took. As a result, I have warm, but non-sectarian, feelings about that monument.

  12. How would you apply your “Historian” approach to the Church of Satan’s spat with the state of Oklahoma?

    At first blush, it looks like you’d side with Oklahoma.

    A judgement that strikes me as unjust, and lacks all of the specific circumstances to the current case that would make it permissible?.

    Do you have any answer to that, or are you chill with Oklahoma denying equal access based on religion?
    ?Namely, that it was a private monument and only entered government ownership because of government action, and that “giving it back”, while the most ethical choice, isn’t practical due to the location.

  13. As a person who doesn’t really care about religion I support state religions as long as we maintain all of our other rights. Letting states establish a religion will end up with results similar to letting a state establish a high speed rail network! I was a supporter of high speed rail until California tried to build a high speed rail network and I guarantee you many people open to religion will be turned off by a religion established by a state.

    1. I sometimes think we might be better off with a 28th amendment that nullifies all the incorporations against the states except the reintroduction of slavery. That way if you hate guns go to California or if you find abortion abhorrent go to Utah. Ilya’s “vote with your feet” plan would really take off, and we could stop caring so much about the makeup of the Supreme Court. There are lots of states and the population could self-sort in all kinds of ways.

      1. Laboratories of democracy, and such. That didn’t last long, did it?

        1. Like socialism just never has been given a real test.

  14. The Historians’ six elements should be the test for whether religion is coercive, under the abstract expressionists’ theory. There. Solved it. 🙂

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