“Of making many books there is no end,” complains the weary author of the Bible’s Book of Ecclesiastes. And there’s no end to lawyers making many lawsuits trying to learn what the U.S. Supreme Court thinks the Constitution means when it forbids “an establishment of religion” by government.
Journalists should provide follow-up analysis of a new era in “separation of church and state” launched June 20 with the Court’s decision to allow a century-old, 40-foot cross at a public war memorial in Maryland. Importantly, we can now assess new Justices Neil Gorsuch and Brett Kavanaugh, who filed separate opinions supporting the cross display.
Actually, the nine justices produced a patchwork of eight separate opinions, which demonstrates how unstable and confused church-state law is.
Ask your sources, but The Guy figures the Court lineup now has only two flat-out separationists, Ruth Bader Ginsburg (age 86) and Sonia Sotomayor. While Samuel Alito managed to assemble five votes for part of his opinion, his four fellow conservative justices are unable to unite on a legal theory. Stephen Breyer and Elena Kagan seem caught halfway between the two sides.
Federal courts have long followed the “Lemon test,” from a 1971 Court ruling of that name that outlawed public aid for secular coursework at religious schools. Chief Justice Warren Burger’s opinion devised three requirements to avoid “establishment,” that a law have a “secular” purpose, “neither advances nor inhibits religion” and doesn’t foster “excessive government entanglement with religion.”
Kavanaugh declared that the Court has now effectively abandoned Lemon in favor of a “history and tradition test,” which permits some cherished religious symbols and speech in government venues despite the “genuine and important” concern raised by dissenters.
Gorsuch, joined by Clarence Thomas, called Lemon law “a mess” and twitted Kavanaugh by saying what matters is legal propriety, not how long something has existed. Gorsuch said “offended observer” claims have “no basis in law” and federal courts should shun such cases lest they “start to look more like legislatures,” where such disputes should be settled.
Thomas sidestepped Alito’s majority opinion because he demands that the Court officially dump Lemon and, more radically, questions the “incorporation” rule federal courts use to control states’ policies on “establishment.”
The Lemon test has long provoked hostility. For instance, in a 1985 case where the Court outlawed public schools’ moment of silent “meditation or voluntary prayer,” dissenting Justice William Rehnquist memorably lampooned paradoxical applications of Lemon by federal courts. (The following year he succeeded Burger as chief justice.)
The case involving the Bladensburg Peace Cross in Maryland is also significant because two of the nation’s preeminent church-state theorists, Douglas Laycock and Michael McConnell, squared off against each other in friend-of-the-court briefs.
File those names, if you haven’t done so already. Reporters should first and foremost interview both on where all this is heading.
A pro-cross argument for the Becket Fund, cited by two justices, came in a brief (.pdf here) from McConnell, a former federal appeals judge who directs Stanford University’s Constitutional Law Center. (mcconnell@law.stanford.edu, 650-736-1326). He thinks the court, yes, must abolish Lemon and instead follow “objective” application of the narrow understanding of religious “establishment” among the Constitution’s original authors and endorsers.
The opposite side contends that cross displays demean Christianity’s most sacred symbol, offend non-Christians and violate government religious neutrality. The World War I memorial needs to come down.
So said a brief (.pdf here) by Laycock, a University of Virginia law professor. (dlaycock@virginia.edu, 434-243-8546). This support for the American Humanist Association’s complaint was joined by the American Jewish Committee, Reform Judaism’s rabbinical conference, the Evangelical Lutheran Church in America, United Church of Christ, the chief executive of the Presbyterian Church (USA) and the Baptist Joint Committee, a group that represents nine Baptist denominations (but no longer the Southern Baptist Convention).