Symposium: Lemon wins a reprieve, but the end is near

Eric Rassbach is Deputy General Counsel at the Becket Fund, which filed an amicus brief in support of the Town of Greece.

Town of Greece is clearly a big win for the town and for a more restrained view of what the Establishment Clause prohibits, and rightly so. But the attorneys for the plaintiffs may find some consolation in the narrowness of yesterday’s holding:  their gambit worked. As I pointed out in the earlier SCOTUSblog symposium on this case, they made a tactical decision at the Supreme Court merits stage to make this case about coercion instead of endorsement.  In yesterday’s ruling, the plaintiffs managed to stave off a direct Supreme Court ruling on the ailing endorsement test.  This is so even though government endorsement of religion was the ground on which they prevailed before the Second Circuit and the reason certiorari was granted.  The attorneys for the plaintiffs are thus to be congratulated for clever lawyering.

But their rescue of the endorsement test, and even Lemon itself, may be short-lived, for several reasons.

First, as I pointed out in the previous symposium, the plaintiffs’ full-scale retreat from Lemon and its corollary the endorsement test serves as further evidence that those tests are ineffective.  That conclusion is borne out by yesterday’s opinions. The majority opinion goes out of its way to negate dictum in County of Allegheny v. ACLU, the leading endorsement test case, and the Court’s tone does not make it sound as if County of Allegheny is long for this world.  And neither the majority opinion nor the principal dissent relies on or applies the Lemon or endorsement tests, although Justice Kagan does refer in passing to the “imprimatur” concept associated with endorsement, and the three-Justice part of Justice Kennedy’s opinion refers to the “reasonable observer.”  Indeed, the only citation to Lemon is in Justice Breyer’s stand-alone dissent and even that makes no mention of Lemon’s three-prong test. If neither the majority nor the dissent apply the Lemon/endorsement framework to decide an Establishment Clause case that the lower courts decided using precisely that framework, the question becomes: Why are the courts of appeals almost uniformly relying on Lemon/endorsement as the main way to decide Establishment Clause cases?  Using one test at the Supreme Court and another in the lower courts is not a sustainable jurisprudence.

Second, all of the opinions save Justice Breyer’s concurrence focus on history in reaching their conclusions. The majority opinion announces a new rule that all Establishment Clause “tests” must be evaluated in light of historic practices: “Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” Thus even if a given practice violates Lemon, it could still be constitutional if the historically-permitted-practice rule applies. The principal dissent if anything delves into more history than the majority, rightly pointing out that a concern for the protection of religious minorities was part of the Founders’ religious settlement. The majority and the dissent disagree both over the content of that history and how it plays out in the context of municipal legislative prayer. But history is the battlefield on which the opposing opinions meet.

This switch to an historical approach is just what my organization, the Becket Fund for Religious Liberty, argued that the Court should do to resolve the crisis in Establishment Clause jurisprudence. Specifically, we urged the Court to take Marsh as the “norm,” and the endorsement test as the “aberration.” Although Marsh’s specific analysis was terse – after the fashion of many Chief Justice Burger opinions – we said that Marsh-style historical analysis is the right starting point for Establishment Clause analysis, not endorsement.  And that is exactly what the Court said yesterday, rejecting the idea that Marsh “carv[es] out an exception” to general Establishment Clause jurisprudence.  Instead, the Establishment Clause “must” be interpreted “by reference to historical practices and understandings.”

This old/new approach has several advantages. Rather than take the endorsement test approach of forcing judicial officers into the uncomfortable and irreducibly subjective role of psychological representative of society, the historical approach gives judges objective facts to work with. The context for any given practice that is challenged is no longer the judge’s mind, but the ascertainable facts of historical tradition.

The historical approach also allows courts to think more cogently about categories of establishment. As we pointed out in our amicus brief, these fall roughly into four categories – government coercion, government control of churches, government funding of churches, and government delegation of powers to churches. How would this work in practice? For example, an Establishment Clause challenge to a government funding program would not start with the inherently abstract “effects” and “endorsement” tests, but with the Founders’ well-documented understanding of what sort of government funding contributed to an “establishment of religion.”  The lower court’s analysis could compare the challenged program to the historic government funding of churches in the colonies and in England. Or as Justice Thomas puts it in his concurrence, the court can ask “what constituted an establishment”? And contrary to Lemon’s premise that the Court “can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law,” there is in fact a wealth of historical scholarship that tells us what the Founders thought was an establishment.

A third reason that the endorsement test’s reprieve may be brief is that the pipeline of endorsement cases is not empty. The Elmbrook School District v. Doe case is set for conference on May 15.  (Full disclosure:  the Becket Fund represents the school district, along with Prof. Michael McConnell and Kirkland and Ellis.)  In that case, the en banc Seventh Circuit ruled that holding a public school graduation ceremony in a church auditorium unconstitutionally endorses religion – even when the church auditorium is admittedly chosen for the secular reason that it is the best venue for the price.  The en banc court’s decision came over three strong dissenting opinions from Judges Ripple, Easterbrook, and Posner. Judge Posner lambasted the endorsement test as “formless, unanchored, [and] subjective.”  If left standing, the Seventh Circuit’s decision would affect a wide variety of governmental practices – including high school graduations – across the country.

Also set for the May 15 conference is the certiorari-before-judgment petition in Mount Soledad Memorial Association v. Trunk, the long-running ACLU challenge to the war memorial cross in San Diego.  That case made a previous trip to the Supreme Court, where it resulted in a prominent statement respecting the denial of certiorari by Justice Alito, who said that the issues in the case were undoubtedly important, but that the case could be more effectively heard by the Court after the district court set out an injunction.

It is safe to say that both these cases are on the Court’s radar screen, and both squarely present the endorsement test and its many problems. So the Court has ample opportunities to revisit the issue.

Where does this leave us?

Yesterday’s decision is correct, but it is not the sweeping change to the law that some had sought; instead, it is narrow and nuanced. But it represents a major milestone in re-founding Establishment Clause jurisprudence on the basis of historical tradition rather than judicial psychologizing.  In that sense it is an important improvement to the law of the First Amendment.

And there is one additional feature of yesterday’s decision that warrants special notice: for a case that was publicly billed as quite divisive, the majority and the principal dissent are not really that far apart when it comes to the overarching structure of the law concerning legislative prayer.  Both agree that legislative prayer is constitutional under some circumstances.  Both agree that faith-specific legislative prayer is also constitutional under some circumstances.  Both agree that pluralism and the protection of religious minorities are important First Amendment values. And both agree that history is a guide to the perplexed judge who confronts an Establishment Clause challenge.  The difference is over the subtests within that historical approach and their application to the facts presented in this case.  That gives the reasonable observer reason to hope that many of the deep church-state conflicts of the past may soon give way to a broad and stable consensus on the Court.

UPDATE:  After this post was drafted, the Supreme Court requested a response from the non-governmental respondents to the pending petition for certiorari in the Mount Soledad case.  The case has therefore been stricken from the Court’s May 15 Conference.