Next Thursday’s Establishment Clause Panel at the Federalist Society National Lawyer’s Convention will be both interesting and timely. Moderated by Ninth Circuit Judge Carlos Bea, panelists Stephanie Barclay (BYU Law School), Luke Goodrich (The Becket Fund for Religious Liberty), William Marshall (UNC School of Law), and Micah Schwartzman (UVA School of Law) will discuss the future of the Establishment Clause in the Roberts Court. The following provides brief background for the panel’s discussion.
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In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court, attempted to fashion a one-size-fits-all test for the Establishment Clause. The “Lemon test” considers a challenged governmental action’s: (i) purpose, (ii) principal effect, and (iii) likelihood of excessive religious entanglement. To say that Lemon’s promise of a standard for all seasons has fallen short is an understatement. It “has been harshly criticized by [the Supreme Court], lamented by lower court judges, and questioned by a diverse roster of scholars.” Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2081 (2019).
In fact, in the decades following Lemon, the Court has repeatedly refused to apply it. Id. at 2080 (collecting cases). Rather, “[o]ver the last half century, the Supreme Court has adopted numerous tests to interpret the Establishment Clause, without committing to any one.” New Doe Child #1 v. United States, 901 F.3d 1015 (8th Cir. 2018). And yet, Lemon remains on the books—earning the dubious distinction of a case the Supreme Court seems unready to either reverse or embrace.
Did the Supreme Court’s most recent Establishment Clause case, American Legion v. American Humanist Association, clarify the situation? 139 S. Ct. 2067 (2019). There, the American Humanist Association sued to remove a nearly-century-old, thirty-two-foot-tall, Latin cross honoring World War I veterans in a public Maryland roundabout.
The Court held 7-2 that long-standing religiously expressive symbolic memorials were presumptively constitutional. It noted that a historic memorial’s age made it difficult to discern its original purpose, and the passage of time would likely multiply and morph the memorial’s message. Further, the Court noted that “[a] government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.” Id. at 2085–86. Relying on the memorial’s association with the crosses that marked World War I graves and its historic nature, the Court allowed the monument to stay.
Six Justices agreed that the Lemon test was not controlling. But what standard will replace it? That was less clear. Perhaps a uniformly applicable Establishment Clause test is, as Hamilton put it, “more ardently to be wished for than seriously to be expected.” See Federalist Papers No. 1. Still, American Legion offers important hints about the future of Establishment Clause jurisprudence.
In particular, what does American Legion mean for cases involving government funding of religious organizations? The Court will have an opportunity to address that in Espinoza v. Mont. Dep’t of Revenue, where the Montana Supreme Court relied on the state’s “Blaine Amendment”—an antiquated, anti-Catholic provision—to strike down a tax credit program benefitting both religious and nonreligious private schools. No. 18-1195 (Sup. Ct.). The Supreme Court will hear oral argument on January 22, and it will consider whether even-handed funding of religious organizations might be not only constitutionally permissible under the Establishment Clause, but also constitutionally required under the Free Exercise Clause.
Finally, does the Establishment Clause have anything to say about the constitutionality of religious exemptions that might cause harm to third parties? This question is presented in a pair of current cases involving religious organizations that provide foster and adoption services. In Michigan, for example, the government recently threatened to shut down a Catholic foster and adoption agency if it referred unmarried or same-sex couples to other agencies for service. A district court preliminarily enjoined the practice as likely unconstitutional (Buck v. Gordon, 19-cv-286, (W.D. Mich. 2019)) and the case is now before the Sixth Circuit (Buck v. Gordon, Nos. 19-2185 (6th Cir.)). See generally, Jacob M. Coate & Nick Reaves, Federal Court to Michigan: Stop Discriminating Against Faith-Based Adoption Agencies, Federalist Society Blog (Oct. 16, 2019). The City of Philadelphia adopted a similar policy, but the Third Circuit upheld the practice, and the case is now before the Supreme Court on a petition for certiorari. Fulton v. City of Philadelphia, No. 19-123 (Sup. Ct.).
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These cases demonstrate continued controversy over the role of religion in the public square. With more than a dozen religion-related cases either before, or potentially before, the Supreme Court, now is the perfect time to become better acquainted with this area of law.
Jacob Coate is a Constitutional Law Fellow at the Becket Fund for Religious Liberty.
This panel will be live streamed on the Federalist Society website.