For over fifty years, Establishment Clause jurisprudence has been haunted by the malleable nature of the Lemon test. At times strictly applied and then reversed, at others “clarified” or even ignored altogether, the various prongs of Lemon have gradually come to resemble the Code of Pirate Brethren: “more what you’d call ‘guidelines’ than actual rules.” Nevertheless, these “guidelines,” along with their adaptations and substitutes, are increasingly exploited by governmental bodies and courts to justify discrimination against religious exercise in public forums. From public transit advertising to public school facilities, this misguided approach to the Establishment Clause necessarily causes the “play in the joints” between religious freedom and rigid governmental neutrality to be a zero-sum no-man’s land. In other words, where the government holds sway, either through a funding program or in a public forum, there religion must fear to tread.
Two cases this term give the Supreme Court a unique opportunity to correct and clarify these misunderstandings of the Establishment Clause brought on by Lemon. In Shurtleff v. City of Boston, the Supreme Court will review the exclusion of a “Christian Flag” from a city program that allowed third parties to submit flags for display outside the Boston city hall. To justify this rejection, a city official cited Establishment Clause concerns and Boston later released a codified policy, explicitly excluding “flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.” The First Circuit, on appeal, cited Lemon to conclude that “the City’s establishment concerns are legitimate.” However, during oral arguments at the Supreme Court, several Justices expressed a desire to remedy these misconceptions about Establishment Clause jurisprudence. Justices Kavanaugh and Kagan, in particular, noted that granting religious groups access to limited public forums, like the flagpole at issue here, is perfectly compatible with, and indeed required by, the Establishment Clause.
The Supreme Court has also just granted cert in Kennedy v. Bremerton School District, which centers on a high school football coach who was suspended by a public school district for briefly kneeling and praying on the field after football games. Once again, the Court of Appeals with jurisdiction, here the Ninth Circuit, relied on precedent stemming from Lemon and its progeny to determine that, even if Kennedy was acting in a private capacity, the school district would be committing an Establishment Clause violation by allowing the coach to continue his post-game prayers on the field. In an en banc opinion, the Ninth Circuit dubiously argued that Kennedy’s actions had a coercive effect on the football players as the public nature of his prayers psychologically “compelled” students to join in.
Shurtleff and Kennedy demonstrate how Lemon-style Establishment Clause jurisprudence has gone very far astray indeed. The approach of the two Circuit Courts incentivizes governments to “sanitize” public forums from practically all religious influence. Banning a Christian flag and prohibiting school employees from any private religious observance deemed too “public” or “psychologically coercive” would seem to be the complete opposite of governmental neutrality. Thankfully, this coming year will provide ample opportunity for the Supreme Court to clarify that the Establishment Clause does not give the government carte blanche to discriminate against religious exercise in the public sphere.
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