Do crosses on public land violate the Establishment Clause? More importantly, how should the Supreme Court interpret the Establishment Clause? On February 27, the Supreme Court will consider these questions at oral argument in American Legion v. American Humanist Association. At issue is a nearly century-old war memorial cross erected by citizens of Prince George’s County, Maryland, to commemorate the county’s fallen World War I heroes. The American Humanist Association sued the county in 2012, arguing that displaying the cross on public property violates the First Amendment’s Establishment Clause. The Fourth Circuit, applying the “Lemon test,” agreed. The Supreme Court has long struggled to find a consistent approach to religious symbol cases. This teleforum will preview the possible approaches the Court could take—as well as how this case might shape Establishment Clause jurisprudence for many years to come.
Luke Goodrich, VP & Senior Counsel, Becket Fund for Religious Liberty
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Monday, February 25, 2019 during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's teleforum conference call. This afternoon's subject is a Courthouse Steps Preview discussion on The Maryland Peace Cross entitled American Legion v. American Humanist Association. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today we are very fortunate to have with us Mr. Luke Goodrich, who is Vice President and Senior Counsel at the Becket Fund for Religious Liberty. After our speaker gives his remarks today, we will move to an audience Q&A. Thank you very much for sharing with us today. Luke, the floor is yours.
Luke Goodrich: Thanks, Wes. Welcome, everyone, to today's call. As Wes said, my name is Luke Goodrich. I'm an attorney at the Becket Fund for Religious Liberty, where I've worked on religious freedom cases for over a decade. By way of disclosure, I did file an amicus brief in this case, together with Professor Michael McConnell of Stanford Law School, on behalf of the Becket Fund and in support of the cross. I also represent the City of Pensacola in a similar case currently pending at the Supreme Court and being held for the Bladensburg cross case. But my hope today is to offer the arguments on both sides of the case.
And given that this is a preview teleforum, my focus is going to be on number one, what's at stake in this case, and number two, what should we all be watching for at oral argument. And the most important thing to keep in mind about this case is that what is at stake here is not just the result for the particular World War I memorial cross at issue here and whether that cross stands or falls; rather what's at stake is the overall direction of the Supreme Court's Establishment Clause jurisprudence. The Court's jurisprudence in that area has been plagued for many years by inconsistency and a lack of guidance for lower courts and local governments. And the result has been a huge amount of litigation over religious symbols on government property, inconsistent court rulings, and deep religious divisiveness over long-standing religious displays.
So the big question in this case is not just whether this cross stands or falls, although that's a very important question. Most Court watchers expect the Court will rule in favor of the cross. But the big question is whether the Court can settle on a consistent method of interpreting the Establishment Clause that provides guidance for lower courts and lowers the temperature on these important legal and cultural issues.
So I'm going to first very briefly lay out the facts of the case. I assume most people are familiar a bit. And then I'll turn to what the significance of this case is going to be for Establishment Clause jurisprudence and how the Court might resolve it.
So first, the facts. The monument at issue here was initiated by local residents in Prince George's County, Maryland who wanted to memorialize county residents who died in World War I. They broke ground for the monument in 1919, 100 years ago. When they ran out of funds, the American Legion took over and completed the monument in 1925. So 94 years ago. And it was dedicated at a ceremony that included Christian chaplains and Christian prayers.
Physically, the monument is 40 feet tall, including the base. There's a plaque at the base that lists 49 county residents who died in World War I. And the base -- the square base has four words inscribed on the four sides: valor, endurance, courage, and devotion. There's a symbol of the American Legion displayed at the center of the cross. That's a circle with a star in the middle of it. And there's an American flag that flies at one side of the cross.
Over the years since it was first erected in 1925, there have been more monuments added in the surrounding vicinity to honor veterans of other conflicts. So there's memorials to veterans of the War of 1812, World War II, the Korean and Vietnam wars, and September 11th. And the whole area is now known as Veterans Memorial Park. The other memorials are located anywhere from 200 feet to half a mile away from the cross, and none of the other monuments are taller than 10 feet. So the cross is quite a bit larger than the other monuments.
Over time, the Peace Cross has been used for a variety of patriotic events on Veteran's Day, Memorial Day, and Independence Day. Most of these events included some kind of prayer or invocation. There's also some dispute in the record over whether the site of the Peace Cross has ever been used for Sunday worship services. The cross was originally erected on city land, but in 1960 due to traffic concerns, an independent state agency took over the cross and the land surrounding it and is now responsible for maintaining it. So you now have a 40-foot cross in the median of a major intersection, on government property, in Bladensburg, Maryland.
The plaintiffs in the lawsuit are several county residents who have seen the cross while driving in the area and find it offensive. They're represented by the American Humanist Association and first filed suit in 2014. The district court granted summary judgment to the government. The court said that the cross would be viewed by a reasonable observer as a war memorial rather than an endorsement of Christianity. The plaintiff's appealed to the Fourth Circuit, and the Fourth Circuit, in a divided panel opinion, reversed. And the Fourth Circuit applied what's called the "Lemon test." This is one of the prevailing tests for interpreting the Establishment Clause, and it's a very important point in the case.
The Lemon test has three parts, or the court asks three basic questions. First, does the government's action lack a secular purpose? Second, does the government's action have the primary effect of advancing or endorsing religion? And, third, does the government's action excessively entangle the government and religion? And applying this test, the Fourth Circuit said that the first prong, the secular purpose prong, was satisfied, that the government did have a secular purpose of traffic safety and commemorating World War I veterans by maintaining the monument. But the panel said that the government ran afoul of the second and third prongs of the Lemon test. Most importantly, the Fourth Circuit said this monument unconstitutionally endorses religion because it is a Latin cross, which is the core symbol of Christianity. The cross is almost 40 feet tall, larger than any other surrounding symbols. It's prominently displayed in a busy intersection. And it's maintained with thousands of dollars in government funds. And so the Fourth Circuit said this would lead a reasonable observer of the monument to conclude that the government was endorsing religion.
The panel, alternatively, said that the monument violated the third prong of the Lemon test, the entanglement prong, because by spending thousands of dollars to maintain the cross, the government was entangled with religion. The state agency appealed and the American Legion, which completed the monument—a private organization—also appealed. And now the Supreme Court has granted certiorari. And to understand how the Court is going to approach this case, it's very important to understand just a few key leading precedents in this area of the law.
So I've already covered the three-part Lemon test, which was first announced by the Supreme Court in 1971. And the Court has often applied the Lemon test to resolve Establishment Clause cases. But the Court has often also criticized the Lemon test. Multiple justices have argued that the Lemon test is vague, subjective, and indeterminate and have called for it to be abandoned. But the Court has never gotten five votes to clearly say that Lemon is abandoned or overruled. So Lemon still hangs around.
A second strand of the Supreme Court's jurisprudence that you need to be familiar with is the Van Orden decision in 2005. So Van Orden -- there was a pair of twin Ten Commandments cases where -- Van Orden involved the State of Texas which had a Ten Commandments on the Texas State House lawn. And the Supreme Court upheld the placement of the Ten Commandments on the State House lawn. But there was no majority opinion. Four justices argued that the Lemon test was not a useful tool for resolving challenges to passive displays like monuments. But the deciding vote was cast by Justice Breyer in a concurring opinion. And he said there's no test related substitute for the exercise of legal judgment. Courts should just consider all the various facts of the case and the context of the monument. And in particular, Justice Breyer looked at the message of the monument, the physical context, and the fact that the monument had stood without legal challenge for over 40 years. And Justice Breyer concluded that, in particular, the fact that the monument had stood so long without legal challenge meant that most people wouldn't view it as an endorsement of religion or an unconstitutional establishment of religion.
So ever since Van Orden, lower courts have wrestled with "Do we apply the three-part Lemon test? Do we apply Justice Breyer's concurring opinion in Van Orden, the legal judgment rule? Or do we apply both?" And that's part of why the Supreme Court granted cert in this case.
Two more cases to be aware of. One is the Supreme Court's decision in Salazar v. Buono in 2010. Buono involved actually another World War I monument cross, this time in the Mojave Desert. And the Supreme Court never actually issued a majority opinion on the merits of that cross. But you did have a plurality of the justices criticize the Lemon test and said that crosses could have a secular meaning. So the Buono case is an important precedent in the briefing here.
And the last case to be aware of is Galloway v. Town of Greece. And that was a decision by Supreme Court in 2014 involving a local town's practice of starting city council meetings with a prayer. And there, kind of like in this case, the lower court had struck down the legislative prayers which were predominantly Christian. And the lower court had relied on the Lemon test. But when the practice of legislative prayer reached the Supreme Court, the majority of the court, 5-4, upheld legislative prayer, and it didn't apply the Lemon test. Instead, it adopted a historical approach. It said the Establishment Clause must be interpreted in light of historical practices and understandings. And the Court pointed out that the very first Congress had authorized legislative chaplains and legislative prayers and held that the prayers in that case were not coercive, and they were consistent with historical practices under the Establishment Clause and were, therefore, constitutional.
So those are the main strands of the Supreme Court's jurisprudence that we should all be aware of – the Lemon test, Justice Breyer's opinion in Van Orden, the Buono decision, and Town of Greece.
So that brings us to the merits and what can we expect from the Court. What are the possible paths that the Court might take to resolving this case? The first possible path which hasn't gotten very much attention in the briefing but it's certainly worth being aware of is the jurisdictional question of standing. Do the plaintiffs have standing to bring this lawsuit? As I mentioned, the plaintiffs are several county residents who have seen the cross in the course of driving the nearby highways and find the cross offensive. And there's an argument here that the plaintiffs lack standing to sue. Typically, the requirements of standing are the plaintiffs have to suffer a concrete injury that's traceable to the government's conduct and is redressable by a court decision. And here the question is whether the plaintiffs have suffered a concrete injury merely by seeing the cross and feeling offended. There's some Supreme Court precedents that suggest feelings of offense are not enough. And yet, there are other cases where the Supreme Court has resolved challenges by offended observers to religious displays and simply hasn't addressed standing at all.
So this hasn't been briefed very much in the parties' briefs. There are a couple of amici who have raised it. But it's something to watch for because if it comes up at oral argument, it could suggest a different way for the Court to resolve the case without having to address the merits. So let's turn to the merits. And I would argue there are four basic paths that the Court could take for resolving this case on the merits. The first is the path of the Lemon test. And the American Humanist Association, which represents the plaintiffs, they don't vocally defend the Lemon test, but the substance of their argument sounds in the Lemon test. They argue that a Latin cross is the preeminent symbol of Christianity. It's a sectarian symbol, and they emphasize that the government -- even if the government can display more generic religious symbols, it can't display sectarian religious symbols; that the sectarian symbol is on government property. It's supported by government funds. It's permanent. It's very tall. It's very prominent. It's not integrated with the other surrounding displays, and it's supported by government funds. In all of this, the plaintiffs argument amounts to the government endorsement of Christianity, and therefore the cross should be removed as unconstitutional.
That's the basic analysis under the Lemon test. The respondents -- sorry, the petitioners in the case, the government and American Legion, argue that they win under the Lemon test. They point out that the cross is clearly a war memorial. It's been in place for over 90 years. In the context of other memorials, there's a plaque commemorating the men who died, and that a reasonable observer would see this and see the government is not endorsing Christianity. It's simply memorializing the men who died in World War I. So those are the competing arguments under the Lemon test.
A second path the Court could possibly take to resolving the merits is what you might call a "punt" or a very narrow ruling that doesn't disturb the law at all but really only applies to the facts of this case. And that's basically the approach that Justice Breyer adopted in his Van Orden concurrence. And this approach would focus primarily on the facts of this case and urge the Court not to change the law and not to think too much about other cases.
And one of the leading proponents of that approach in this case is the Maryland government commission, which is defending the cross and is represented by Neal Katyal. And the basic argument there is that a cross can have a dual meaning. It can have a religious meaning, of course, but it can also have a meaning of commemorating fallen troopers. The cross here was placed to memorialize sacrifice and loss. It's in a physical setting integrated with other monuments. And most importantly under Justice Breyer's fact-intensive approach, the monument here went 93 years without legal challenge, and it would be highly divisive to remove it. And so the basic argument is that while other memorials involving religious content might well be unconstitutional, this one should be upheld because it's a very, very old memorial, and it's a war memorial.
And I mentioned that main proponent of that argument is the Maryland commission that owns the monument. But interestingly, one of the amici for the plaintiffs also made this argument. Professor Doug Laycock at the University of Virginia. He argues that the cross should be taken down and should be ruled unconstitutional. But in the alternative, he argues for a narrow ruling and urges the Court to say if you uphold this cross, you should issue a ruling that really only applies to this cross. That old religious symbols which are vestiges of old establishments can remain. But only because it's too divisive to remove them. So you can think of that as sort of a damage-control argument trying to limit whatever the Court's ruling is here to the narrow facts of this case.
So I've covered the Lemon test. I've covered the very narrow Van Orden concurrence – a punt approach. A third possible path -- and now we get to what is really the biggest question in the case is can the Court adopt an approach to resolving Establishment Clause cases that is different from Lemon? Some sort of concrete approach that lower courts can follow.
The first alternative to Lemon that's being offered is offered by the American Legion, represented by Jones Day and First Liberty. And they argue that rather than asking whether a religious -- whether the government action endorses religion, the primary focus should be on whether the government is coercing religious practices or religious observances. They argue that the touchstone of an establishment at the time of the Founding was government coercion, actual legal coercion. And they also, however, acknowledge that some government actions that are not coercive, such as speech or passive displays, could amount to what they call de facto coercion if it's exploited to proselytize or exclude nonadherence.
So the basic idea here is that the core of an Establishment Clause violation is where the government is engaging in some form of coercion – pressuring someone to worship a certain way, punishing dissenters, or controlling internal church workings. But there are a number of possible government actions that are concerning, things like proclaiming an official state religion, even without coercing it. And so the proponents of the coercion approach say that there is an exception if government speech is exploited to proselytize or exclude nonadherence. That's the basic gist of the coercion approach.
And then a fourth approach, a second alternative to Lemon, what I've argued in an amicus brief with Professor McConnell on behalf of the Becket Fund, and some others have argued, is for a historical approach. Basically following the Supreme Court's analysis in Town of Greece, the legislative prayer decision. And the gist of the historical approach is that the Supreme Court should evaluate the Establishment Clause based on historical practices and understandings.
And Professor McConnell has done scholarly work looking at what actually constituted an establishment of religion at the time of the Founding. It wasn't a mystery. Nine of the thirteen colonies had an established church. And England, obviously, had an established church. And Judge McConnell argues that there are six elements of an establishment of religion as that term was understood at the time of the Founding.
The first is government control over the doctrine and personnel of the established church. These were laws that regulated who could preach and how worship would be conducted within the established church.
Second element is mandatory attendance in the established church. So there were laws imposing penalties for failing to attend church services.
A third element of establishment was government financial support of the established church. These were specific taxes and land grants given only to the established church.
Fourth element is restrictions on worship in dissenting churches. So people who preached outside the established church or attended dissenting churches were subject to punishment.
A fifth element was restrictions on political participation by dissenters. And these, for example, were laws barring dissenters from voting or holding political office.
And the sixth element of an establishment was use of the established church to carry out civil functions. So laws giving the church authority to keep public records or prosecute moral offenses.
And so under the historical approach, the key question when there's an Establishment Clause challenge is does the challenge government practice at issue in the case share any of the characteristics of an establishment at the time of the Founding? So that offers four different paths the Court could take for resolving the merits of the case: applying the Lemon test, a narrow fact-based ruling that's sort of a punt, adopting the coercion test, or adopting a historical approach.
Let me just wrap up with what we should be looking for at oral argument. First, pay attention to whether the Court asks any questions about standing. It's kind of a sleeper issue because it hasn't been briefed by the parties in any detail. But it could really change the course of the outcome of the case, particularly if one or two or three justices peeled off on standing grounds. It could lead to a splintered decision.
Second thing to watch for is which path do the justices, on the merits, seem most attracted to? Which justices seem content to remain within the framework of Lemon or the framework of Van Orden? And which justices are actively looking for answers on alternative standards, and which standard do they seem most attracted to? That could give an indicator of which direction the Court is heading.
A third thing to look for is damage control. Will there be any justices seizing on, for example, Professor Laycock's offer of a narrow ruling for upholding this cross but leaving the Court free to strike down other religious symbols in other contexts? Are there any justices attracted to that very narrow approach? I would say, looking ahead, I think there are at least five votes to move away from the Lemon test. The Court has repeatedly expressed dissatisfaction with that. But the big question is are there five votes to agree on an alternative? Can at least five justices coalesce on something besides Lemon? Or will they issue a split ruling that leaves lower courts in limbo and continues to produce uncertainty and division over these legal issues. So a very fascinating case, lots of look out for, and I look forward to your questions. Thanks.
Wesley Hodges: Well, thank you so much, Luke, for you commentary. We have a very strong audience of over 100 people today. Thank you, callers, for presenting your questions. Luke, let's go ahead and start with our first question. I think we have about five questions in the queue so far. So here's our first question.
Alex: Hi. My name is Alex. It's nice to hear y'all speak. I was wondering do you believe that the justices are going to lean more towards a stricter version of Lemon or a more broader version?
Luke Goodrich: Thanks. Great question, Alex. I think there are at least five justices who want to get away from Lemon entirely. So neither a strict nor a broad interpretation of Lemon. And the question is whether you could get five justices for an alternative, whether that's the coercion approach or historical approach. And, really, if I were to make a prediction about whether the five can agree, it would only be worth about as much as you're paying for it right now. So I won't make a prediction there. But I do think you have at least five who want to get away from Lemon.
Wesley Hodges: Thank you, caller. And Luke, for our benefit real fast, would you mind touching on one more time the real differences between the coercion test and historical approach?
Luke Goodrich: That's a really important distinction. So I think at the end of the day the coercion approach and the historical approach would often reach very similar results. But the question is how do you get there? And I think there's a couple -- let me give a couple examples that illustrate it. So one example is government funding of religious organizations. Now, the coercion test is open to saying that when the government taxes a citizen and uses that money to support a religious organization, that is coercive. The government is saying you have to pay this tax or you get in trouble. But the coercion test really struggles to identify which types of taxing and spending is unconstitutional and which is not because all taxing could be deemed coercive in the same way. But not all government spending is problematic under the Establishment Clause in the same way.
And I think that's one reason why a historical approach is stronger than the coercion approach because under the historical approach, you have a very clear way of distinguishing taxes. You say how was the established church funded at the time of the Founding? And there's a very clear answer historically. There were two main types of funding for the established church: mandatory taxes called tithes and land grants for the support of the established church. And both of those, the tithes and the land grants, involved exclusive funding for churches. So under a historical approach, a tax where the revenue was used and given exclusively to a religious organization, that would be constitutionally problematic. But a tax where the revenue is taken and it's distributed to a broad array of groups, both religious and non-religious, using neutral criteria, that would not be a problem because that is not how the established churches were funded at the time of the Founding.
And that distinction actually mirrors a lot of what the Court has already done in funding cases and makes a lot of sense substantively.
Another area where you can see a bit of daylight between the coercion approach and the historical approach would be in the area of school prayer. There's a couple cases: Engel v. Vitale and Abington v. Schempp where the Supreme Court struck down the practice of public schools composing prayers that children were asked to recite but were able to be excused from if they wanted to be excused. And in those cases the Court had some dicta saying, "Well, you don’t have to show coercion in order to make out an Establishment Clause violation." Students were not being punished if they excused themselves from the prayer.
So what do you do with that? What do you do with those decisions under the coercion test? And the petitioners in their briefs argue -- wrestle with that a little bit. They basically come down to say coercion doesn't just mean direct coercion; it also means indirect coercion. And those students were indirectly coerced to engage in the prayers. They felt peer pressure, and so that would violate our test -- would ultimately violate the coercion test. You know, I think that's a sensible way to distinguish those cases, but it is a little bit artificial, and it leaves a huge number of questions about what kind of an indirect coercion is impermissible? Is there indirect coercion in this case where you have a huge cross at the center of a major intersection?
The historical approach, by contrast, looks at a case like Engel or Schempp where school officials are composing a prayer and asking everybody to recite it, and says wait a minute. That bears some of the hallmarks of an established church at the time of the Founding where you had governments dictating what religious doctrine was. The Church of England -- the Book of Common Prayer was adopted by Parliament as the official form of prayer in the established church. So to have government officials saying, "Here's our official prayer and you should say it," it's no problem under a historical approach saying that that's problematic under the Establishment Clause. And you don’t have to get into whether it's direct or indirect coercion.
That's just a couple examples of where the coercion test and historical approach might reach similar results, but I would argue the historical approach offers a clearer and more analytically sound basis for getting there.
Wesley Hodges: Well, thank you so much, Luke, for that spotlight. The queue is very healthy right now, so let's go ahead and move to our second caller.
Rich Douglas: Hi. Terrific program. My name's Rich Douglas, and I actually filed the first amicus motion in this case in the district court, Docket Number 11, with 11 local residents here in Prince George's County. So it's very gratifying to see people coming out of the woodwork to get into this case. And Becket, your brief is terrific. I'm really grateful. You all are doing a terrific job. Just one little bit of context, this memorial's actually sitting on the Bladensburg Battlefield from the War of 1812. It's not outside of the historical context at all. When the British went in to burn Washington at the state line between the District of Columbia and Maryland, there was a battle – British marines and the army. Unfortunately, locals couldn't stop them, and they went down and burned the White House. But my question: early on there was a lot of discussion about § 1983 in the context of this case. Whatever happened to that? Where did that go, and do you think that will be a factor at all at the Supreme Court? Thank you.
Luke Goodrich: Yeah, thank you for that context, and that's a good question. I think the Fourth Circuit, basically, allowed the plaintiffs to move forward bringing their Establishment Clause challenge under § 1983. It really hasn't been a contested issue at the Supreme Court, so I don't expect to see much movement on that when the Court issues its decision here.
Wesley Hodges: Well, let's go ahead and move to our third caller.
John Filena (sp): Hi, it's John Filena. On the coercion doctrine, the cases in which it's been most successful have been school prayer cases where the -- Engel, Abington, Lee v. Weisman more recently, where the age of the children, their impressionability, is a key factor. It doesn't work in Town of Greece because you have adults sitting the room. So how could, doctrinally, someone craft a broader coercion argument that was not historical but just analytical? I haven't read the briefing. I'd be interested -- I don't think you're very sympathetic to the argument, but I can't even understand, given the recent history that I've outlined there, how it could even, doctrinally, be feasible.
Luke Goodrich: Thank you, John. I want to make sure I understand the question, so maybe you can go ahead and keep the floor. But you raise a great point that the Supreme Court has repeatedly viewed the school context as different. When young children are there, it's been much more sensitive to arguments about coercion. And in Town of Greece, as you mentioned, there were legislative prayers; there were adults present in the room. And the plaintiffs argued that the legislative prayer was coercive because you have adults approaching the town seeking relief from zoning, or things like that, and the town officials say, "Hey, let's pray. Will you join us in prayer?" And there's pressure to stand and participate in the prayer. Much like there's pressure at a high school graduation in Lee v. Weisman to stand and participate in the prayer. And yet, the Supreme Court rejected the idea that those prayers were coercive. So if I understand you correctly, I agree that the Court doesn't seem eager to extend the coercion rationale to adults.
But you can imagine if you look historically, there are many examples of coercion of adults at the time of the Founding in established churches. There were punishments for people who refused to attend the established church; punishments for individuals who worshipped or preached in dissenting churches; restrictions on political participation by dissenters. So when we look at history, we have plenty of examples of coercion of adults. We just don’t have any evidence that the Founders viewed a passive, religious display that doesn't coerce anybody to do anything as a problematic form of establishment.
John Filena: Right. All of those things that you mentioned are pretty much beyond the pale. None of them are in cases -- impose anything as Draconian as those measures. How could anybody who wanted to use it to find an illegal establishment rely on it today outside of the school cases? I mean, I don’t see it being a winner. And that's what I was questioning.
Luke Goodrich: I think you're exactly right mainly because we've moved. As a society, we've moved very, very far from where we were at the time of the Founding, and it's very rare for the government to coerce adults in matters of religion in the establishment context. And so most of the arguments you've seen have been in the school context.
Wesley Hodges: Thank you so much, caller. Let's go ahead and move straight to our next caller.
Chris Green: Hi. This is Chris Green at Ole Miss Law School. I'm curious about the 14th Amendment issues in the case. I suppose those are related to the § 1983 issue. But I was thinking, in particular, Justice Gorsuch's concurrence last week in Timbs. He said he was sympathetic -- or suggested he was sympathetic, might be sympathetic, to moving to the Privileges and Immunities Clause vehicle for incorporation. Justice Thomas, of course, has said if you do that, you wouldn't get incorporation of the Establishment Clause. And David Upham has recently published an article advocating that approach. And one of the things in Gorsuch's concurrence, he says -- he kind of recapitulates Thomas's concurrence from McDonald and he characterizes it as the individual rights enumerated in the Bill of Rights, and that's the kind of criterion that might exclude the Establishment Clause. So I'm wondering if there's any -- I haven't looked at the briefing, but is there any 14th Amendment discussion in any of the briefs, and did that bit from Gorsuch's concurrence get anyone excited beside me?
Luke Goodrich: No, that's a great question, Chris. I think there is. I think I recall some discussion of incorporation doctrine in some of the amicus briefs, in part because as you mentioned, Justice Thomas has already signaled his willingness to conclude that the Establishment Clause is not incorporated against the states through the 14th Amendment. Yet, in some of Justice Thomas's opinions along those lines, he's gone on to say -- he hasn't come outright and say, "We absolutely shouldn't incorporate the Establishment Clause against the states." He's said things like, "It resists incorporation."
And as you probably know better than anybody, but for our listeners, the basic argument is that the Establishment Clause is not an individual rights granting provision. It doesn't protect an individual. It's rather a structural limit on government power saying that it originally meant that Congress couldn't take any action to establish a religion at a national level, but Congress also couldn't take action to disestablish churches that were established at the state level. And so Justice Thomas has argued that it's really odd to take a provision that originally meant states were allowed to maintain their establishments and turn it into a provision that means states are forbidden from doing just what they were protected to do. So Thomas has argued it shouldn't be incorporated.
And you raise a great point about Gorsuch's concurrence in Timbs. To me that suggests maybe you have two votes now to say that the Establishment Clause resists incorporation against the states. That's obviously very far from five votes. But it could -- one of the concerns about how this case ends up is if you don't get five votes for an alternative to Lemon, what if you get one or two justices concerned about standing and saying the plaintiffs don’t have standing? And you have one or two saying they want a coercion test or historical test. And then one or two say it shouldn't be incorporated to begin with. And then one or two say we still want to stick with the Lemon test or a narrow approach under Van Orden. You could end up with a very splintered decision that doesn't really resolve the future of Establishment Clause jurisprudence and leaves the lower courts in limbo. So it's worth keeping in mind all of those different possibilities for splintering.
Wesley Hodges: Well, thank you, Chris, and thank you, Luke. We do have, looks like three questions left in the queue. Let's go ahead and continue the chain and go to our next caller.
Caller 5: Hello. Something I found very interesting about the historical test from the Town of Greece is that it seems like it doesn't give atheists or polytheists the same First Amendment protection. Am I misunderstanding?
Luke Goodrich: That's a great question. I think it actually does protect atheists and polytheists. One example would be the State of Maryland for many years had a law that barred atheists from holding public office. And the historical approach rightly recognizes that that was one element of an establishment was laws imposing disabilities on dissenters. So the Supreme Court ultimately struck that down, but a historical approach offers a very clear basis for reaching that result. And so it really does provide protection for dissenters, including atheists and polytheists.
I think maybe the counterargument, which I would expect the plaintiffs to make here, is that it doesn't provide protection for atheists and polytheists who are offended by religious symbols like the one that we see here. And that's a perfectly valid point. There may be passive government displays of religious symbols that would not be struck down under the historical approach. But number one, that's perfectly consistent with the text and original meaning of the Constitution.
But number two, what I would offer there is why should we care about these religious symbols in the first place? And I think one reason to allow passive religious symbols is that religion is a fundamental part of human culture, much like sex, ethnicity, art. These are all important aspects of human culture. And for the government to be able to communicate non-coercively on -- to declare African American history month or recognize the contribution of women in the sciences and the arts, and to speak on all these important issues of human culture, but to muzzle the government when it comes religion, actually ends up speaking volumes about religion and suggesting that it's somehow unfit for public discussion.
And so one of the benefits of the historical approach is that it recognizes that, yes, the government cannot coerce anybody in matters of religion. It can't control religious doctrine. It can't compel financial support for religion. But it doesn't mean that the government has to scrub religion from the public square. It can recognize that religion is an important part of human culture, and hopefully, that's something that many different religious groups can get behind.
Wesley Hodges: Looks like we do have two more questions in the queue.
Caller 6: Luke, a two-part question if you don’t mind. First, why would the plaintiffs have or not have standing under Flast? And why isn't anybody talking about that? And the second question is from the docket, it appears that the petition was filed before Kavanaugh joined the Court and it was granted after he joined the Court, which implies that he is the fourth vote, which implies that there were not four votes before. So if you would comment on that, and if we're reading too much into it.
Luke Goodrich: Thanks for the question. So the first one is about standing under Flast. That's a reference to taxpayer standing. And as a general matter in most areas of constitutional law, the mere fact that you are a taxpayer and the government is spending money in a way that you disagree with is not considered an injury that gives you standing to sue. And I can't say, "Hey, I don’t like how the government is spending money to build the border wall, so I'm going to go sue over the border wall." Rather, you have to have some specific injury to you.
In Flast and its progeny, the Supreme Court did recognize an exception to this bar on taxpayer standing. They recognized an exception for the Establishment Clause and has ruled that in some cases when the government expends funds in a way that violates the Establishment Clause, then someone has taxpayer standing.
And so you raised a very important question, "What's the argument for taxpayer standing here?" And the county government has, in fact, spent money to maintain the monument. The plaintiffs, I'm not sure what their strategy is. They haven't emphasized taxpayer standing as the primary grounds for standing. And if I had to speculate, I would say one reason for that is there's a line of cases saying that if you win an Establishment Clause challenge and the basis for your standing was the expenditure of tax funds, then the relief that you're entitled to is stopping the expenditure of those funds. So it would mean if the plaintiffs won here on the grounds of taxpayer standing, they wouldn't necessarily get to remove the monument. They would just get an injunction stopping the government from spending further funds to maintain the monument. And a lot of these monuments are well beloved locally and governments probably wouldn't have too much trouble getting private groups who would maintain the monuments. So taxpayer standing wouldn't ultimately get the plaintiffs what they want if they want the monument removed.
And then your second question, the fact that the petition was filed before Justice Kavanaugh joined the Court and was granted after, and does that mean he's the fourth vote. I've looked into this and I think there are times when the Court -- if there are some votes for granting a petition but a new justice will be joining eminently, sometimes the Court will hold a petition and set it for future conferences in order to get the views of the incoming justice. I don't think it necessarily means that there were three votes and so they held it to get a fourth vote. It may just mean they wanted to give him the opportunity to express his views on the case as well. So certainly worth thinking about, but I'm not sure I would press it too hard.
Wesley Hodges: Thank you so much, caller. Let's keep the questions rolling. Next caller, you are up.
Alexandra McPhee: Hi. This is Alexandra McPhee from Family Research Council. And I wanted to clarify some of the differences you mentioned between the coercion test and the historical approach. I noticed that in American Legion's brief they limit their coercion standard in a footnote by saying that under Town of Greece, a coercion standard must at least apply to government speech. And I know you mentioned that often coercion and a historical approach will have the same outcome but in different respects; in certain areas they won't. I was wondering if this government speech point American Legion makes is one situation where the coercion standard and the historical approach meet.
Luke Goodrich: Yes, that's a great point, a great clarification. And I think American Legion expanded on that point in its reply brief, in part because the opening brief focused very much on actual legal coercion. And there's good reason to focus on that. Justice Thomas's opinions have focused on that. But the respondents in their amici raised questions like, "What about a completely non-coercive proclamation that Presbyterianism is the official religion of our state? That doesn't coerce anybody, that doesn't penalize anybody who's not Presbyterian, just a proclamation that Presbyterianism is the official religion. How would you analyze that under the coercion approach?"
And so one thing that American Legion says in its reply brief is that there's really two different ways you can violate the Establishment Clause under the coercion test. One is actual legal coercion, like penalizing people. But the other they say is you can, quote, "establish a religion, per se, by designating an official religion, taking official positions on religious doctrine, or similar actions, even if, arguably, non-coercive." So the American Legion petitioners who are arguing the coercion approach, they would say, yes, declaring that Presbyterianism is the official religion of the U.S., that violates the coercion test, even if it's not coercion.
And I have no problem with that outcome, but it is kind of odd to say that, yes, this is not coercive, but it violates the coercion test because maybe it means you're actually apply something other than the coercion test. And to my mind—again, I'm biased—but a historical approach makes a lot more sense because you can point to official declarations just like that that other colonies have done, that Great Britain did, and say, "Yes, declaring an official state religion, that is one of the hallmarks, historically, of an establishment at the time of the Founding, and that's why it violates the Establishment Clause." So you don't end up tying yourselves in knots saying, "Oh, yes, this is not coercive, but it violates the coercion test."
So, again, you reach the same result, but I think the historical approach gives you a more direct route for doing so.
Wesley Hodges: Well, thank you so much, caller. Let's go ahead and turn to what looks like the last question we have in the queue.
Jordan Lorence: Hey, Luke. Jordan Lorence from Alliance Defending Freedom. Great presentation, and you're just a wealth of knowledge. And I had a question about the historical test. Is this correct, what I'm saying, on how this would apply is that it's whether something had a historical precedent to it, not necessarily how old it is. So what I have in mind is like some community, like, tomorrow, put up something similar to the Bladensburg Cross and said they were honoring war dead from the Iraq and Afghanistan wars. I think, and tell me if you agree with this, that they could utilize the historic precedent of these kind of monuments and the fact that it's actually only weeks or months old doesn't make any difference. Is that correct?
Luke Goodrich: Yes. That's correct. And that's a great point of distinction because the historical test, a historical analysis doesn’t mean that the government bears the burden of pointing to something identical that happened in 1789 and saying, "Hey, look, the first Congress did this, so we're allowed to do it too." Rather, a historical approach says the burden is on the plaintiffs, the people saying that the government violated the Establishment Clause, and they need to point to something in the historical record, point back to the historical hallmarks of an establishment at the time of the Founding and say that, "Hey, what the government is doing here bears the same characteristics and poses the same threat as what governments that established churches at the time of the Founding did."
And so you're exactly right, that simply putting up a new monument to veterans of the Iraq War would not be problem under the historical approach.
Jordan Lorence: And if I can have one other question. Your answer to the last question prompted me—and I'm just using you as a human Westlaw—wasn't there—and where this would come out under either a historical or coercion test—wasn't there a case -- and in fact, maybe Becket brought it. I can't remember where . . . it was like the supervisors of the city and county of San Francisco condemned the Roman Catholic Church about something they passed, some resolution. So it wasn't "We favor Presbyterianism, but we condemn some aspect of Roman Catholicism." And if you don’t know what I'm talking about, it just prompted and I can't remember the case exactly. But where would that fall with all of this?
Luke Goodrich: That case, that's Catholic League for Religious and Civil Rights v. City and County of San Francisco. It was decided by the Ninth Circuit in 2010. I'm not a human Westlaw, but I do have a computer in front of me, and I have Google, and I remember the case. And that was where the City of San Francisco basically issued a non-binding resolution condemning the Catholic Church and the doctrine of the Catholic Church for its views on marriage, and basically urged Catholics within the city to disobey Catholic teaching. It said this is abhorrent teaching and you shouldn't go along with it.
A majority of the court there concluded that the plaintiffs lacked standing to challenge this non-binding display. And so I think it shows some pretty deep inconsistency in how we think of standing. So if a government in the Ninth Circuit put up a purely passive display, a Ten Commandments monument, and somebody saw that and was offended, under Ninth Circuit jurisprudence they would have standing. But if the government issues a proclamation condemning your religion and condemning your religious beliefs and urging you to abandon them, the Ninth Circuit says you don't have standing. You can tie yourself in knots trying to figure out why the Ninth Circuit decided it that way.
But it calls for two things: one is it cries out for we need a more consistent doctrine of standing when it comes to the establishment Clause. And either both of those should give standing or neither. And if both of them give standing, I think the historical approach would show that that kind of proclamation, even though it didn't coerce anybody, the proclamation condemning somebody basically as a heretic, you have plenty of those at the time of the Founding, and that would clearly be a violation of the Establishment Clause if there was standing to bring that sort of a case.
Wesley Hodges: Thank you so much, Jordan. It looks like that has exhausted our queue, and by the look of the clock, we're at the top of our hour. So, Luke, I turn the mic back to you. Do you have any closing thoughts for us before we end the call today?
Luke Goodrich: I appreciated everybody's questions, and I think the main thing to keep in mind with this case is that lower courts and local governments do need some consistent way of resolving these types of disputes. They need guidance from the Supreme Court. Lemon has definitely not provided it, and it's past time for the Court to offer something besides Lemon.
I think the historical approach offers a great way of resolving these sorts of disputes. It tracks the Supreme Court's recent decision in Town of Greece, and ultimately, it draws the right boundary between church and state, and ensures that the government can't control religious doctrine. It can't compel religious observance. It can't provide exclusive funding for religious groups. And separation of church and state, along those lines, is a very good thing.
But the historical approach also says the government doesn't have to scrub every religious reference from the public square. And that's a good thing because religion is a fundamental part of our human culture. And for the government to acknowledge religion as part of our history and culture is not only constitutionally permissible, but desirable. So let's hope for a good outcome in the case, and thanks everybody for joining.
Wesley Hodges: Well, thank you so much, Luke. On behalf of The Federalist Society, I'd like to thank you for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at firstname.lastname@example.org. Thank you all for joining for the call. This call is now adjourned.
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