SALT LAKE CITY — Even though they’ve had more than 230 years to figure out what it means to “establish” religion, legal scholars, judges and religious freedom advocates still don’t agree.
The Constitution’s establishment clause — a religious protection in the First Amendment that prohibits the “establishment of religion” by the government — is aimed at reducing church-state entanglement, but over time, it’s created confusion and controversy, too.
“This whole area of law is really a mess,” said Kelly Shackelford, president, CEO and chief counsel for First Liberty Institute, a firm involved in a major establishment clause case about to come before the Supreme Court. The case centers on a cross-shaped World War I memorial in Maryland that is maintained with state funds.
Shackelford and other conservative legal scholars say the establishment clause is about coercion, or forced religious activity. It prevents laws mandating regular church attendance or financial contributions to a faith group, but it allows passive celebrations of religious practice, like a nativity scene on government property.
“The founders never intended for the establishment clause to be used to attack religion or create a society where religious images aren’t allowed in public,” Shackelford said.
Liberal activists and judges, on the other hand, interpret the establishment clause more broadly, claiming the government shouldn’t endorse or promote religious messages, even passively. They focus on the experiences of religious minorities, arguing that, when the government appears to privilege a particular faith group, it degrades community life.
Dennis Cook, Associated Press
Demonstrators pray in front of the U. S. Supreme Court in Washington Monday, Oct. 6, 2003, in support of the Ten Commandments monument ordered removed from a Montgomery, Ala., courthouse. The Supreme Court could clarify some elements of religious protection in the First Amendment in 2019.
“It generates political division along religious lines and can result in the persecution of religious groups,” said Monica Miller, senior counsel with the American Humanist Association, the organization squaring off against First Liberty Institute in The American Legion, et al. v. American Humanist Association, which the Supreme Court will hear on Feb. 27.
The case is an opportunity for justices to alter the course of establishment clause litigation by adopting a more conservative interpretation. In so doing, they would also drastically change the government’s relationship to religion, said Robert Tuttle, professor of law and religion at George Washington University.
“If the standard of coercion were adopted by the court, that would make a huge difference in our lives and in the understanding of what the country means,” he said. “It would open up a lot more space for religious messages in public institutions.”
Establishment or endorsement
The establishment clause is a unique part of the Constitution, according to Tuttle. Instead of guaranteeing a right to something like free speech or a fair and speedy trial, it prevents the “establishment of religion.”
“It’s the one provision of the Bill of Rights that isn’t truly an individual right. It’s a limitation on … the state,” he said.
America’s founders wanted to avoid church-state entanglement, which most other countries embraced at the time. They envisioned a country free of an “official connection between political and religious authorities,” said Richard Garnett, a law professor at the University of Notre Dame, in an email.
Because of the establishment clause, the government can’t pick an official state religion or require donations to faith groups, he noted. Officials also can’t demand to help choose religious leaders or force people to celebrate religious holidays.
Basically every legal expert, conservative or liberal, would agree with this summary. Disagreements stem from rulings and policies that go beyond these bright line rules.
Today’s battles over the establishment clause originated in the mid-20th century, Tuttle said. The United States was becoming more religiously diverse, and some legal scholars and activists began pushing for broader interpretation of “establishment.”
“Around the end of the second world war, folks started to become more self-conscious about the extent to which Catholics and Jews were excluded,” he said. They wanted to ensure that the government avoided even appearing to favor Protestant Christianity over other faith groups.
Gene J. Puskar, Associated Press
A pedestrian passes a plaque containing the Ten Commandments on the Allgheny County Courthouse in downtown Pittsburgh, Friday, April 27, 2001. The plague has become a source of controversy with some claiming it represents an illegal co-mingling of church and state. The Supreme Court could clarify some elements of religious protection in the First Amendment in 2019.
As the nature of establishment clause challenges changed, the Supreme Court began relying on the “Lemon test,” named after a case on state funding for religious schools, in its rulings.
The test seeks to ensure that policies or displays aren’t religiously motivated and that they have a secular purpose, Miller said. It prevents excessive entanglement between the government and religion.
In the 1980s, Justice Sandra Day O’Connor added an “endorsement test,” further broadening the definition of establishment. In a concurring opinion in a case involving holiday displays on government property, she asserted that the government should avoid making people feel like outsiders by endorsing religious symbols or messages that aren’t shared by all citizens.
“But what would it mean if towns were able to erect crosses that effectively say ‘This is a Christian community?’”
Robert Tuttle, professor of law and religion at George Washington University
Under this interpretation of the establishment clause, a Christian nativity scene can only be on government property if it’s paired with representations of other faiths. Religious leaders can offer prayers before government meetings, but the opportunity has to be open to people from all faith groups.
The Lemon and endorsement tests have made life more complicated for judges assigned to establishment clause cases, Shackelford noted.
“Judges have to figure out how far Rudolph is from a menorah to decide if something is constitutional,” he said.
Religion in public life
Shackelford and other conservative legal scholars hope the Supreme Court will replace the Lemon and endorsement tests this term when they rule on The American Legion, et al. v. American Humanist Association. The case centers on a large, cross-shaped WWI memorial in Bladensburg, Maryland, which, although originally erected by the American Legion, is now maintained with state funds.
The American Humanist Association argues the cross violates the establishment clause since it requires non-Christian taxpayers to pay for the upkeep of a Christian symbol. The Maryland-National Capital Park and Planning Commission and the American Legion, which is represented by First Liberty Institute, say it fulfills a secular purpose: honoring WWI soldiers.
“There’s a lot of hope in this case,” Shackelford said. “It’s a good time to clean (establishment clause litigation) up” and embrace a more conservative interpretation of this First Amendment right, she said.
Harry Cabluck, Associated Press
This 5-foot tall stone slab bearing the Ten Commandments stands near the Capitol in Austin, Texas, in this July 29, 2002, file photo. The Supreme Court could clarify some elements of religious protection in the First Amendment in 2019.
Miller disagrees with this framing, noting that justices are more likely to make a decision that affects only this one memorial or one element of the Lemon test.
“I don’t believe the court will overhaul its (establishment clause) jurisprudence,” she said.
Regardless of the scope of the eventual ruling, it’s clear that arguments in the case will be about more than a single cross in Maryland, Tuttle said. The justices will be asked, yet again, to define the proper relationship between the government and religion.
“People who are advancing arguments in favor of the cross think it’s perfectly fine for the government to speak with a religious voice,” he said. “But what would it mean if towns were able to erect crosses that effectively say ‘This is a Christian community?'”
To Shackelford, it would represent an affirmation of America’s religious heritage at a time when secularism is on the rise. The establishment clause was never meant to keep religious expression from the public square, he said.
“The government is not supposed to be anti-religious,” he said.
However, to Miller, narrowing the scope of the establishment clause would be an affront to non-Christians. America’s founders knew a country functions best when religious and political interests are kept separate, she said.
“When the government can place its imprimatur on a Christian symbol, it sends a message that the government is going to be less favorable to you” if you don’t agree, she said.
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