The Volokh Conspiracy
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Prof. Michael McConnell (Stanford), one of the top Religion Clauses scholars in the nation, passes along some thoughts on the Maryland Cross arguments:
The Supreme Court heard oral argument yesterday in American Legion v. American Humanist Association, which is an Establishment Clause challenge to a 94-year-old cross memorializing World War I veterans. After argument, it seems likely the Court will uphold the cross. It also seems likely the Court will jettison the Lemon test, which has long sown confusion for lower courts and local governments alike. Unfortunately, however, oral argument gave the Court little help in finding a legal standard to replace Lemon. That is particularly disappointing because a better standard does exist—and it focuses on the historical elements of an establishment of religion at the time of the founding.
[1.] Yesterday's oral argument revealed plenty of dissatisfaction with Lemon. Justice Gorsuch reflected the mood when he called Lemon a "dog's breakfast," said that Lemon has produced a "welter of confusion" in the lower courts, and suggested that it's "time for this Court to thank Lemon for its services and send it on its way." Justice Kavanaugh and Chief Justice Roberts seemed to agree Lemon is too subjective to be useful. And Justices Thomas and Alito have criticized Lemon in the past. So it looks like Lemon won't control. The question is what will replace it.
[2.] On that question, Neal Katyal, arguing for the Maryland Commission that owns the cross, was no help. He urged the Court to uphold the cross based on its secular "purpose" and "objective meaning"—which is no different from the Lemon test.
Michael Carvin, arguing for the American Legion, which put up the cross, was a bit more helpful. He offered a "coercion" test with an exception for "proselytizing." Under that test, any "tangible interference with religious liberty" that amounts to coercion is unconstitutional, as is any government effort to "proselytize." This is similar to the standard offered by Jeff Wall, who argued for the United States.
But the Justices were plainly skeptical of this coercion-plus-proselytizing test. Justice Gorsuch said there is no meaningful difference between "proselytization" and "endorsement." Chief Justice Roberts, too, said the proselytization exception "degenerates pretty quickly into … a fact-specific test." Unfortunately, they are correct. Courts have experimented with "endorsement" for thirty years, and it is now clear that the test this most resembles is Mr. Rorschach's. Swapping in "proselytization" for "endorsement" is not much improvement.
[3.] So what should the Court use to replace Lemon? At one point, Chief Justice Roberts discussed the amicus brief I filed on behalf of the Becket Fund, which argues that the Court should adopt a historical approach. Under this approach, the question is not whether the government is "endorsing," "coercing," or "proselytizing" in matters of religion. The question is whether the government's actions share the characteristics of "an establishment of religion" at the time of the founding. After yesterday's argument, I'm more convinced than ever that a historical approach offers the best way out of the Lemon mess.
Under a historical approach, the first question is what constituted "an establishment of religion" at the time of the founding. This is not a difficult question to answer, as nine of the thirteen colonies had an establishment. These establishments shared six characteristics: (1) government control over the 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. In applying this approach, the burden of proof is not on the government to show that the First Congress or the colonies engaged in the exact same practice. Rather, the burden is on the plaintiffs to show that the government's conduct shares the historic characteristics of an establishment.
The historical test includes coercion, because so much of the historic establishment of religion was coercive. But it is far more textured than merely a coercion test. It includes government action that favors one religion over another, that involves the government in doctrinal or ecclesiological issues, that invests religious bodies with political power, and much more. In short, an historical approach is bounded and objectively administrable, but not as narrow as "coercion" or as subjective as "endorsement."
[4.] This approach yields a clear result in the Maryland Peace Cross case: displaying the cross is constitutional. The government is not controlling religious doctrine, compelling religious observance, sending money to a religious organization, or punishing dissenting worship. It is simply using a religious symbol to memorialize fallen soldiers—a practice that is consistent with the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch v. Donnelly, 465 U.S. 668, 674 (1984).
Our founders made every attempt to be religiously inclusive (within the demographic range of the day), but they did not regard the use of religious terminology or religious symbolism in the ordinary course of civic events as presenting an "establishment" issue. For example, a committee including Benjamin Franklin and Thomas Jefferson, tasked with designing a national seal, proposed an image of Moses and the Israelites crossing the Red Sea with the words "Rebellion to Tyrants Is Obedience to God." The national motto, the national anthem, and even the words with which Supreme Court hearings are begun contain religious references. Use of a cross to memorialize the war dead is not much different.
[5.] The historical approach is consistent with the vast majority of the Court's existing precedent, and indeed provides a better explanation for most of the cases. School prayer is unconstitutional because the government uses its power to control religious doctrine (by composing an official prayer) and compel religious observance (by pressuring children to say it). Engel v. Vitale, 370 U.S. 421 (1962). Test oaths are unconstitutional because they restrict political participation by dissenters. Torcaso v. Watkins, 367 U.S. 488 (1961). Laws giving churches veto power over liquor licenses are unconstitutional because they assign civil authority to the church. Larkin v. Grendel's Den, 459 U.S. 116 (1982). Laws giving exclusive funding to religious groups are unconstitutional because they mirror the exclusive taxes that supported the established church. Cf. Mitchell, 530 U.S. 793.
In particular, the historical approach gives objective content to the core principle of neutrality. The principle of neutrality has been malleable, at least as used in the Court's cases, because the Court has never clearly identified an objective baseline from which "neutrality" and "nondiscrimination" should be judged. Some opinions assume a baseline of complete secularism in government affairs, such that almost any religious references—whether "under God" in the Pledge of Allegiance, or prayers at city council meetings—are viewed as "advancement" of religion or denominational discrimination. This is ahistoric, produces hostility toward religion, and impoverishes public culture. A more objective baseline consists of the body of historical practices that have been widely accepted throughout the nation's history and are consistent with the historical meaning of the Establishment Clause.
[6.] The Court's main concern at oral argument was not with the cross at hand—which most Justices seemed to agree presents an easy case—but with hypothetical future cases that might involve more overtly sectarian displays. Justice Kagan, for example, asked what would happen if a city erected several "crosses around town" because the "values of Christianity" were "important to this community."
This is an important question under any approach. But the historical approach offers several good answers. First, as Deputy Solicitor General Jeff Wall emphasized for the United States, "all of the hard cases on this test are imaginary." There are 230 years of history since ratification of the Constitution—over 150 years of which took place before the Establishment Clause was held to be incorporated against the states—and there is no evidence of any locality anywhere putting up crosses around town to emphasize the values of Christianity. Judicial intervention was not necessary to prevent these extreme cases from happening.
There is a strong case to be made that the Court's intervention over the last forty years has made things worse, not better. The Court's efforts to draw fine lines where no objective lines can be drawn is the cause of, not the solution to, much divisiveness over religious symbols. The "symbol" most advocates from both sides want is a win in the Supreme Court.
Contrast the historical approach. The Virginia Assessment Bill, which was successfully opposed by Madison and Jefferson, explicitly rested on a claim that "the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men." It is a far cry from that sort of explicit attempt to emphasize the "values of Christianity" and the use of a solemn symbol to honor soldiers from Bladensburg who died in World War I.
The historical approach is not "anything goes." A key element of an establishment at the time of the founding was government involvement in religious doctrine. Sometimes this meant the government enacted laws specifying official religious teaching—as when Parliament enacted the Articles of Faith, which set forth the official tenets of the Church of England. Other times it meant the government declared one particular faith as the official religion—as when South Carolina in its 1778 constitution provided that "[t]he Christian Protestant religion shall be deemed and is hereby constituted and declared to be, the established religion of this State." Under the historical approach, then, the question would be whether a government display shared these characteristics of an establishment. In an extreme case, the Court might conclude that erection of a symbol outside the ordinary context of civic events is tantamount to declaring an official religion—particularly if (as would likely be the case if this ever happened) the legislation or official acts authorizing the placement of the cross included statements to that effect. But the outcome would not turn on vague notions of "proselytization" or "endorsement"; it would turn on an objective comparison of the challenged government action to known historical practices.
[7.] What lower courts and local governments desperately need is not guidance on hypothetical cases that have never arisen. They need guidance on the many cases they're wrestling with today. Lemon doesn't provide that guidance. It makes the problem worse. A coercion-and-proselytization test doesn't provide that guidance. It sends courts back down the endorsement rabbit hole. Only the historical approach offers an objective path forward.