We do not have to follow the fatally flawed housing policies of the Johnson, Clinton and Bush administrations.
Lemon v. Kurtzman has many shortcomings, and Professor Beckwith accurately diagnoses many of them. Below, we briefly pile on with a few more criticisms of Lemon before turning to the unavoidable question that follows from Beckwith’s article: instead of applying Lemon, how should courts resolve Establishment Clause disputes?
Let Me Count the Ways…
While criticisms of Lemon could fill volumes, here are just a few more. For one, Lemon puts a straitjacket on Establishment Clause jurisprudence—especially in the lower courts. Lemon’s rigid framework is ill-suited for the myriad ways in which religion and government come into contact. Disputes over monuments are not the same as disputes over legislative prayer or government grants. Lemon’s attempt to unify all Establishment Clause jurisprudence into a one-test-to-rule-them-all approach simply cannot account for the different constitutional concerns implicated by varied factual scenarios.
Lemon also poses unanswerable questions. Instead of tethering its constitutional analysis to something concrete and capable of elucidation (like a historical record), Lemon invites a theoretical inquiry. It asks courts, for example, to determine a statute’s “primary effect.” But this, as American Legion explained, is an almost impossible task. Often, both the legislative process and the passage of time make trying to find just one “primary” effect a fool’s errand.
Lemon’s analytical framework is thus a façade. Its lack of an objective grounding allows judges to rely on gut feelings to justify their preferred result. This (admittedly cynical) view of Lemon helps explain why even minor distinctions between Christmas displays—like how far away a group of carolers is placed from a crèche—often make the difference. In short, Lemon puts judges’ predilections, not the Constitution’s text, in the driver’s seat.
Beckwith is also right that rigorous application of Lemon would result not in government neutrality toward religion, but in government hostility. This is because an assumption about how society should be ordered is smuggled into Lemon’s framework. It assumes that a religion-free public square is the constitutional baseline against which all religious symbols, displays, and references must be measured. Requiring, for example, that all government actions be justified by a “secular” purpose implicitly rejects the possibility that a public monument’s reference to religion can be justified as an instance of benevolent neutrality between religion and non-religion.
Contrary to Lemon’s secularist assumptions, experience shows that the public square is not (and never has been) devoid of religion. Instead, the natural human impulse to believe in the divine and the government’s recognition of this religious component of our culture and history have meant that the public square has acquired both religious and secular elements. Nor can it fairly be claimed that the founding generation—themselves largely religious—would have understood the Establishment Clause to act as a wedge, slowly driving all references to religion from the public square.
A Path Forward
Given Beckwith’s conclusion that Lemon should no longer govern, the natural next question is what should replace it. How should courts resolve Establishment Clause claims going forward? As we have argued before, the approach supported by history and precedent is not a single test, but a context-specific comparison to what was considered an “establishment” of religion at the time of the Founding. This approach is more faithful to the People’s agreement to the Establishment Clause in the first place and has the benefit of producing more consistent and objective decisions.
Put another way, if the government’s challenged action shares the historical characteristics of an “establishment of religion,” it likely implicates the Establishment Clause. Of course, in order to apply this analysis, it is necessary to understand the characteristics of an “established” church at the Founding. On this score, there is abundant historical evidence. Nine of the thirteen colonies had established churches and the founding generation was very familiar with the various established churches of the United Kingdom—the Church of England, the Scottish Kirk, and the Church of Ireland.
Thorough historical research has already distilled this understanding of an established church down to a handful of common characteristics: (1) government control over the doctrine and personnel of the established church; (2) government-mandated attendance in the established church; (3) restrictions on worship in dissenting churches; (4) government financial support of the established church; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions. These attributes—rather than some vague conception of what is “too much” religion—best reflect what the People forbade via the Establishment Clause.
Under this approach, delegating to a church the power to unilaterally veto local liquor license applications, for example, would most likely fall within the historical understanding of what an “established” church would do. And the Supreme Court in Larkin v. Grendel’s Den said as much: “by delegating a governmental power to religious institutions,” the law “inescapably implicates the Establishment Clause.” Interestingly, even in 1982, the Court’s analysis was largely “[i]ndependent” of Lemon. Indeed, the bottom line was straight out of the history books: “[t]he Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.” Larkin is thus an early example of how the Supreme Court, while still paying lip service to Lemon, frequently turned to history for guidance. And, as Beckwith explains, the Court took a similar approach in Marsh v. Chambers, Lynch v. Donnelly, Van Orden v. Perry, and Town of Greece v. Galloway.
Today, the Supreme Court no longer hides its historical analysis. The Court’s two most recent decisions evince the most open and self-conscious embrace of a historical approach in decades.
Justice Alito candidly pointed out in American Legion that “this Court has either expressly declined to apply [Lemon] or has simply ignored it” in eleven of its most recent decisions. He then contrasted Lemon’s “ambitious” attempt to “find a grand unifying theory of the Establishment Clause,” with the Court’s recent and “more modest approach that focuses on the particular issue at hand and looks to history for guidance.”
Were there any doubts, the Court in Espinoza v. Montana Department of Revenue confirmed the importance of historical analysis. When describing the bounds of the Establishment Clause, the majority focused squarely on its historical roots, citing Trinity Lutheran, Cantwell, and Everson. And, perhaps even more telling, neither dissent so much as cited Lemon. Justice Breyer instead invoked Madison and Jefferson to support his argument regarding the “‘historic and substantial’ concerns” that have “consistently guided the Court’s application of the Religion Clauses.”
Following the Supreme Court’s lead, lower courts should therefore look to history—and specifically to the characteristics of an “established” church—when applying the Establishment Clause.
This approach has several crucial benefits. For one, while there will certainly still be disagreements over what the historical record supports and how it should be applied, courts are at least engaged in the same common enterprise. Unlike Lemon (a highly subjective test which became only more complex and convoluted with age), a historical approach invites an objective analysis: comparing what the government is doing now to what has historically been understood as an establishment of religion. This type of comparative analysis is something courts are generally good at; and it should become easier over time as a body of law interpreting the historical record develops.
A focus on history also fosters a better relationship between religion and civil society. Like it or not, governments are culture makers. Governments fund public art projects, control access to public spaces, and police the public square. But, as noted earlier, a test that sets as its baseline the absence of religion turns the government into a force for secularism. Such an approach does not respect even the bare minimum requirement of “neutrality among religions, and between religion and nonreligion.” A historical approach, however, recognizes that from the time of the Founding onward, religion has always had a place in the public square. Thus, a healthy public square is one that can recognize the important role religion has played (and continues to play) in our society, not one that promotes the secular over the religious.
Looking beyond Lemon, we see a path forward that takes us back to the Founding and a return to the People’s understanding of an “established” church. This approach best fits the Establishment Clause’s history and the Court’s past practice, while promoting consistency, objectivity, and a better relationship between religion and public life.