Improving The Establishment Clause: History Offers An Answer
When the Founding Fathers wrote the Constitution, they immediately recognized the necessity to enshrine the First Amendment into law.[1] It is the most basic and fundamental right granted by the United States Constitution –– protecting free speech, freedom of the press, and the right to assemble. Tucked within the First Amendment exists the lesser-known Establishment Clause (EC), prohibiting Congress from establishing a religion. While straightforward, school districts and organizations have continually cited this clause to attack those who perform religious rituals, claiming a “breach of establishment on their grounds.” In a recent case, Kennedy v. Bremerton School District (2022), a school prohibited its high school football coach Joseph Kennedy from religious exercise during and after school football games. Its narrow claim on the grounds of the EC did not hold, and the United States Court of Appeals for the Ninth Circuit upheld Kennedy’s right to free speech under the First Amendment.[2] While certain groups are twisting the EC by prohibiting religious practice against individuals rather than the government, the court continues to deny these claims, siding with those who wish to practice their religion freely. However, the Supreme Court must also revisit its foundational core, as the Lemon Test offers too much room for subjectivity, leading many judges to abandon the test altogether.
The scope of the EC has consistently protected various aspects of religious expression such as the creation of monuments, advertisements, economic incentives, and reimbursements. For example, in American Legion v. American Humanist Association (2019), the Court upheld that the establishment of a 40-foot tall cross to memorialize World War I veterans does not violate the EC.[3] Ultimately, it found that the emphasis on historical importance outweighs the claim that the monument was propagating and encouraging the spread of Christianity. Justice Stephen Breyer stated in the majority opinion that “...the Latin cross is uniquely associated with the fallen soldiers of World War I” and that it “poses no real threat to the values that the Establishment Clause serves.”[4] This case builds upon a robust historical precedent to uphold the display of religious symbols. For example, in Board of Trustees of Scarsdale v. McCreary (1985), the Court affirmed the decision that a Christmas display on public property did not violate the EC.[5] Even in cases where the court has held differently, there exists extensive dissent from Conservative justices on the grounds of discrimination and biased subjectivity. For example, in the Archdiocese of Washington. v. Wash. Metro. Area Transit Authority (2020), the Court upheld the transit authorities' prohibition of religious ads and rejected the Catholic Church’s challenge.[6] In a powerful dissent, Justice Neil Gorsuch found that the transit authority’s denial of religious advertisement was viewpoint discrimination by a government entity and a violation of the First Amendment.[7] In fact, this is often cited as a form of “egregious content discrimination” in that the government is effectively “taking sides” by singling out and prohibiting certain opinions on larger subject matters.[8] Historically, such viewpoint discrimination has also been an issue. In Congregation Lubavitch v. City of Cincinnati (1993), the court sided with the city to prevent Jewish congregation signs to be erected in the town’s Fountain Square, when it had previously allowed other Christian denominations to do the exact same.[9] Choosing to evade the EC issue altogether, the court sided with the city’s actions of favoring certain groups over others, thus engaging in extensive content discrimination. Ultimately, “The First Amendment requires governments to protect religious viewpoints, not single them out for silencing.”[10]
Yet, in some cases, the Court remained objective and true to the foundational idea of freedom of expression above all else in the face of viewpoint discrimination. In Rosenberger v. Rectors and Visitors of the University of Virginia (1995), the Supreme Court reversed the lower court’s decision and found that the University engaged in prohibited viewpoint discrimination by preventing a student from establishing a magazine to discuss Christian views, relying on the Court’s decision in Lamb’s Chapel v. Center Moriches Union Free School District (1993).[11] Further, the result has implications regarding the impact of financial incentives, such as subsidizing student organization funds, in consideration of EC cases. It recognizes that when governments fund private speakers about certain topics, they may discriminate based on content to separate church from state. But the Student Activities Fund (SAF) program at the University is designed “to encourage a diversity of views from private speakers” through reimbursement of certain costs incurred by student organizations –– thus, it must provide those benefits using a procedure that is viewpoint neutral: “WAP did not seek a subsidy because of its Christian editorial viewpoint; it sought funding as a student journal, which it is.”[12] Together, the EC has remained on the side of individuals and organizations wishing to practice various religious gatherings and rituals.
However, the EC still remains a contentious topic –– the Lemon Test has continued to face strong opposition, citing possible overextension and complications in the legal process. This tripartite test, coming from the influential case Lemon v. Kurtzman I (1971), determines whether a law or governmental activity violates the EC by considering whether or not it satisfies three points: (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.[13] The government violates the EC if it crosses not all, but rather any one of the above rules. However, its application has been inconsistent, mostly coming from the subjective third pillar. Justices who generally support strict separation can use the test to find a violation of the establishment clause, whereas supporters of accommodation use the same test to uphold the practice or program in question.[14] In Lee v. Weisman (1992), the question of nondenominational prayer at a high school graduation was a violation of the EC. Chief Justice William Rehnquist argued for a nonpreferentialist test, Justice Sandra Day O’Connor advocated a religious endorsement test, and Justice Antonin Scalia continued to advance a noncoercive test.[15] While extensive comparative analysis of the three stipulations falls outside the scope of this article, it's nonetheless highly suggestive of the controversy and lack of consolidation in these cases. Even with the variety of credible perspectives, Justice Anthony Kennedy, who wrote the opinion in Lee, still joined those who supported the preservation of the Lemon Test.[16] Such controversy has led to certain cases abandoning the Lemon Test altogether. For example, in Marsh v. Chambers (1983), the Court upheld that the use of public funds for public chaplaincy practice did not violate the EC. Rather than using the traditional test, the Court relied on “historical custom”, something later used in American Legion v. American Humanist Association (2019), as justification. It highlights that tax-supported legislative chaplains could be traced to the First Continental Congress and the Bill of Rights, and thus is a "part of the fabric of our society."[17] Such a move was based on past cases that established precedents, like Town of Greece v. Galloway (2014), in which the Court upheld that the town’s practice of having prayer before town meetings did not violate the Establishment Clause.[18] The ruling did not cite the Lemon Test, but rather an emphasis on the “history and tradition” test –– Justice Samuel Alito agreed with Justice Antonin Scalia, concluding that the historical pedigree of prayer before local governmental bodies was sufficient.[19] Throughout history, the Lemon Test has proved a controversial standard. Instead, reliance on the historical significance and precedent of the case will offer a more objective evaluation of the EC.
As the separation between church and state continues to be blurred, the future status of the Establishment Clause must rely heavily on solid objectivity to ensure the protection of religious expression. Particularly for constitutional law, in which cases revolve around the fundamental liberties and rights afforded to every citizen, the EC is a reflection of the importance of rational deliberation rather than shifting subjectivity. It’s likely that the First Amendment and the Establishment Clause will be up for debate once again in the future by those who wish to tear them down. However, by substituting the “excessive entanglement” pillar of the Lemon Test with an emphasis on historical relevance and customs, the EC will more objectively support the wide expression of religion socially and financially for individuals and organizations alike.
References
[1] “The Bill of Rights: A Tanscription,” National Archives, The U.S. National Archives and Records Administration.
[2] Oyez. 2022. Kennedy v. Bremerton School District. United States Court of Appeals for the Ninth Circuit.
[3] The First Amendment Encyclopedia. 2019. American Legion v. American Humanist Association. United States Court of Appeals for the Fourth Circuit.
[4] Ibid.
[5] The First Amendment Encyclopedia. 1985. Board of Trustees of Scarsdale v. McCreary. United States Court of Appeals for the Second Circuit.
[6] The First Amendment Encyclopedia. 2020. Archdiocese of Washington. v. Wash. Metro. Area Transit Authority. The U.S. Court of Appeals for the D.C. Circuit.
[7] Ibid.
[8] The First Amendment Encyclopedia. 2017. Viewpoint Discrimination.
[9] Ibid.
[10] Ibid.
[11] The First Amendment Encyclopedia. 1992. Rosenberger v. Rectors and Visitors of the University of Virginia. United States Court of Appeals for the Fourth Circuit.
[12] Ibid.
[13] “First Amendment and Religion.” n.d. United States Courts.
[14] Jr, Richard L. Pacelle. 2009. “Lemon Test.” Middle Tennessee State University. 2009.
[15] Ibid.
[16] Ibid.
[17] Oyez. 1983. Marsh v. Chambers. United States Court of Appeals for the Eighth Circuit.
[18] The First Amendment Encyclopedia. 2014. Town of Greece v. Galloway. The U.S. Court of Appeals for the Second Circuit.
[19] Ibid.