The Supreme Court recently heard oral argument in American Legion v. American Humanist Association, which involves an Establishment Clause challenge to a 94-year-old cross on government property memorializing World War I veterans. The argument suggests that the Court wants to take its Establishment Clause jurisprudence in a different direction, but it might not be sure what that direction should be.
For the last few decades, Establishment Clause jurisprudence has been dominated (some would say “haunted”) by the Lemon test. Under Lemon, a government action is unconstitutional if it (1) lacks a secular purpose, (2) has the primary effect of “endorsing” religion, or (3) excessively entangles government in religion. Lemon has been sharply criticized by lower courts and Supreme Court Justices as highly subjective and “entirely unpredictable.” But the Court has never had five votes to clearly repudiate it.
That might be changing. Oral argument in American Legion suggested there are at least five votes to reject Lemon. Justices Thomas and Alito have heavily criticized Lemon in the past. Chief Justice Roberts and Justice Kavanaugh seemed to agree that Lemon is too subjective to be useful. And Justice Gorsuch called Lemon a “dog’s breakfast,” suggesting it’s “time for this Court to thank Lemon for its services and send it on its way.”
Much of oral argument, then, focused on what sort of analysis might replace Lemon. On that question, the parties weren’t much help. Neal Katyal, who represented the government agency that manages the cross, urged the Court to keep Lemon intact and narrowly uphold the cross as a World War I memorial with “independent secular meaning.”
Mike Carvin, who represented the private group that built the cross, urged the Court to replace Lemon with a “coercion” test. Under this test, any government action that “coerces” religious conduct, either directly or indirectly, is unconstitutional. Also, any government speech that “proselytizes” is unconstitutional. Jeff Wall, arguing for the United States as amicus, offered a similar test.
But the coercion-or-proselytization test found little support at oral argument. Justice Gorsuch said there is no meaningful “difference between saying I endorse something and I proselytize [something]” (emphasis added)—so the proselytization test simply “tak[es] us right back to the dog’s breakfast” of Lemon. Chief Justice Roberts, too, said the coercion test starts out as “a pretty concise test, but it degenerates pretty quickly into . . . a fact-specific test.”
This criticism of the coercion-or-proselytization test is not surprising. Courts have struggled with the definition of “coercion” ever since Lee v. Weisman in 1992—when Justice Kennedy concluded that “subtle and indirect” “peer pressure” to join in a high school graduation prayer was coercive. By that measure, almost any government speech could be deemed coercive, because plaintiffs can always allege “subtle and indirect” pressure to conform. The “proselytization” exception only makes matters worse, because, as Justice Gorsuch pointed out, proselytization is basically “endorsement” by another name.
The coercion-or-proselytization test also fails to make sense of the Court’s funding cases. As Eric Rassbach has pointed out, “all taxes can in some sense be viewed as coercive.” But “not all tax-supported funding of religious organizations is unconstitutional.” Some funding is suspect—like when money flows exclusively to religious groups. Some funding is permissible—like when money flows neutrally to both religious and nonreligious groups. But “[t]he ‘coercion’ test can’t distinguish among these types of funding.”
So if Lemon is bad, and coercion-or-proselytization is not much better, what should the Court do?
Chief Justice Roberts offered a glimmer of hope when he mentioned the amicus brief of the Becket Fund (my organization) authored by Professor Michael McConnell of Stanford Law School. That brief argues that the Court should replace Lemon with a historical approach based on the elements of “an establishment of religion” at the time of the founding. 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.”
McConnell’s scholarly work has identified six characteristics of an establishment at the time of the founding: (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. As Chief Justice Roberts said, these are “all pretty stark items…that certainly…underlay the Establishment Clause when it was adopted.”
This historical approach offers several benefits. First, it offers a more objective basis for resolving Establishment Clause claims. Rather than asking whether the government’s actions run afoul of malleable concepts like “endorsement” or “proselytization,” the question is how the government’s actions compare with known historical practices.
Second, the historical approach is not as narrow as a strict “coercion” test. To be sure, founding-era establishments involved coercion; but they also involved non-coercive actions that contributed to an establishment—such as proclamations of an official state religion, designation of official religious doctrine, or delegation of government authority to religious bodies. The coercion test tries to account for these practices by tacking on a vague exception for “proselytizing” (based on dictum in a Justice Kennedy concurrence). But that exception is divorced from history and offers no meaningful guidance. The historical approach, by contrast, identifies a clear set of non-coercive practices that are still unconstitutional.
Third, the historical approach makes better sense of the Court’s existing precedent. As McConnell has explained: “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.”
Fourth, the historical approach offers a better answer to the hypotheticals that seemed to trouble the Justices at oral argument—such as the case of a city that erects several crosses around town because it values Christianity, or the case of “In Jesus Christ We Trust” on currency. A key element of an establishment at the founding was government involvement in religious doctrine—including non-coercive declarations of official state religion or official religious teaching. As McConnell has explained, in these kinds of extreme cases, the Court might conclude that erection of multiple crosses or a declaration of trust in Jesus Christ “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 [declaration] 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.”
Ultimately, the historical approach is not only more objective and administrable than the alternatives, it is more faithful to the underlying purpose of the Religion Clauses—which is to leave religion as untouched by government power as possible. In the private sphere, this means the government doesn’t interfere with religious doctrine, compel religious observance, punish religious dissent, or prop up a favored church. Rather, it leaves private religious groups and individuals to practice their religion as they see fit.
In the public sphere, this means government doesn’t tear down every religious symbol or pretend like religion doesn’t exist. Rather, it recognizes that religion is a normal part of human culture, just like race, ethnicity, sex, and art are normal parts of human culture.
In short, the historical approach is a workable alternative to Lemon that is faithful to the text, history, and purpose of the Establishment Clause. Let’s hope the Court adopts it.