The great success of originalism is that it offers an external constraint on judges that is more objective than any contemporary vision of justice.
In Everson v. Board of Education (1947), Justice Hugo Black clearly proclaimed that the “First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Writing for the majority, he concluded that a New Jersey program subsidizing transportation of parochial school students was constitutional. Four dissenting justices and many observers thought that the decision and opinion were contradictory.
The majority and dissenting opinions in Everson relied on a dubious reading of American history, but the metaphor of a wall of separation between church and state could have provided guidance to lower courts if anyone actually followed it. Taken literally, it would create a bright line prohibiting any state involvement with churches and other religious entities. For instance, such a wall would seem to exempt synagogues from building codes and prohibit police officers from protecting church property. But no jurist has ever understood the Establishment Clause to require such outcomes.
In hopes of bringing some clarity to its Establishment Clause jurisprudence, justices created an analytical test in Lemon v. Kurtzman (1971). The Lemon Test permits laws and policies that benefit religion if they 1) have a secular purpose; 2) do not have a “principal or primary effect” of advancing or inhibiting religion; and 3) do not foster “an excessive entanglement between government and religion.” Alas, this test has proven no more useful than the wall of separation metaphor. Supreme Court Justices have used it to strike down and uphold a variety of very similar practices, and they periodically ignore it and then revive it. In 1993, Justice Antonin Scalia compared it to a “ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”
Since the mid-1980s, largely at the urging of Justice Sandra Day O’Connor, some jurists have held that the Establishment Clause is best understood as prohibiting governments from doing things that a reasonable observer might understand to be endorsing religion. This approach is sometimes merged with the Lemon Test, as it was by the U.S. Fourth Circuit Court of Appeals in The American Legion v. American Humanist Association. In spite of, or because of, all of these tests, many observers agree with Justice Clarence Thomas’s remark last year that “this Court’s Establishment Clause jurisprudence is in disarray.”
The Bladensburg Cross
The American Legion v. American Humanist Association involves a 40-foot Latin cross erected by private citizens on private land to commemorate the 49 men from Prince George’s County, Maryland, who died in the First World War. Due to safety concerns, Maryland took over the memorial, known as the Bladensburg cross, in 1961. The Fourth Circuit concluded that this state involvement “has the primary effect of endorsing religion and excessively entangles the government in religion” and so is in violation of the Establishment Clause. This decision, if affirmed by the Supreme Court, raises questions about the constitutionality of numerous religious symbols and expressions on public land across the nation.
On February 27, 2019, the United States Supreme Court heard oral arguments in this case. Neal Katyal, representing the state of Maryland, emphasized that the Bladensburg cross was built 93 years ago by private individuals and that it is currently situated in a park alongside other war memorials. He also stressed that “in the wake of World War I, crosses like this one have an independent secular meaning.”Deputy Solicitor General, arguing as a “friend of the court” on behalf of the state and the American Legion, reiterated many of these points.
Michael Carvin, representing the American Legion, encouraged the Court to abandon the Lemon Test. Drawing from Town of Greece v. Galloway’s approach to legislative prayer, he argued that a historical approach to the Establishment Clause provides better guidance to lower courts than asking them to discern whether a reasonable observer might consider a memorial to be endorsing religion. In this sort of case, he contended that governments can engage in religious speech so long as they are not coercive or attempting to proselytize. Because the purpose of the cross in question is to memorialize soldiers and not to coerce or covert, it is constitutional.
Monica L. Miller, arguing on behalf of the American Humanist Association, stressed that a cross is a uniquely religious symbol and that its use to memorialize soldiers amounts to endorsing Christianity. Some religious memorials, such as crosses in Arlington Cemetery, may be constitutional, but only if religious symbols from other faiths are present and no one tradition is favored over the others. Although there are other memorials in Veterans Park, they are small and obscure, and they pale in comparison to the 40-foot Bladensburg cross.
The Court’s more liberal justices peppered the monument’s defenders with questions about the appropriateness of using a cross to memorialize soldiers who may or may not have been Christians. They also objected, reasonably enough, to the claim that a cross is a secular symbol. Justice Kagan, for instance, asked Wall if his claim was that “the cross has become a symbol that’s universal” rather than “the foremost symbol of Christianity?”
Conservatives jurists, on the other hand, pushed Miller on why they should declare the Bladensburg cross to be unconstitutional in light of cases that upheld legislative chaplains, displays of the Ten Commandments on public land, and the like. They were also concerned about the implications for other memorials should the Bladensburg cross be found unconstitutional.
It is always risky to predict how justices will decide a case based on oral arguments, but their questions and past votes suggest that Justices Roberts, Gorsuch, Kavanaugh, Alito, and Thomas will find the cross to be constitutional. Justice Breyer may well concur with the majority, but primarily because the cross is almost a hundred years old. In his words: “History counts. And so, yes, okay [to the Bladensburg cross], but no more.” On the other hand, Justices Ginsburg, Sotomayor, and Kagan seem likely to view the cross as an unconstitutional endorsement of religion.
The Lemon Test or a Return to America’s Founders?
The Blandensburg cross is almost certainly constitutional, but First Amendment experts will still await the Court’s opinion with bated breath to see if the majority repudiates the Lemon Test. Justice Gorsuch appears to be leaning in this direction, referring to Lemon’s endorsement test as a “dog’s breakfast” and later observing that “it’s been a long time since this Court has applied Lemon; but yet the courts of appeals continue to cite it and use it . . . and it has resulted in a welter of confusion.” He then asked whether “it is time for this Court to thank Lemon for its services and send it on its way?”
For the Court’s conservative justices, a clear alternative to the Lemon Test is a return to the original understanding of the Establishment Clause. Carvin referred specifically to brief written by Professor Michael McConnell for the Becket Fund for Religious Liberty, a brief with which Chief Justice Roberts was clearly familiar. McConnell argues that:
there is abundant evidence of what constituted an establishment at the founding—namely, (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.
A return to the original understanding of the Establishment Clause would prohibit governments from engaging in these sorts of policies. This approach would provide extensive protection to religious minorities without calling into question practices such as appointing military and legislative chaplains, permitting religious holiday displays on public land, and using crosses to memorialize fallen soldiers.
Since 1947, the vast majority of Supreme Court justices have insisted that the Establishment Clause must be interpreted in light of its generating history. The Court misconstrued and distorted this history in Everson, and separationist justices have continued to do so to the present day. The Supreme Court would do well to heed Professor McConnell’s call to abandon the Lemon Test and rely instead on an accurate account of the Founders’ understanding of what the Establishment Clause does, and does not, permit.