Legal Analysis and Commentary from Justia

Justice Thomas Takes Aim at the Court’s Church-State Jurisprudence but Hits the Constitution Instead

Last week, Justice Clarence Thomas strongly dissented from the Supreme Court’s decision not to grant review of the Tenth Circuit Court of Appeals ruling in Utah Highway Patrol Ass’n v. American Atheists, Inc.  The appeals court had held that large roadside crosses memorializing fallen state troopers violated the Establishment Clause because they would convey to the reasonable observer the impression that the State of Utah endorsed Christianity.

According to Justice Thomas, the high Court ought to have taken the case to reconsider the so-called “endorsement test” itself.  In his view, that test is so vague that it results in utterly unpredictable rulings.  With ample supporting citations, he noted that under court decisions applying the endorsement test, “a crèche displayed on government property violates the Establishment Clause, except when it doesn’t,” “a menorah displayed on government property violates the Establishment Clause, except when it doesn’t,” and “a cross displayed on government property violates the Establishment Clause, . . . except when it doesn’t.”

As I shall explain in this column, Justice Thomas unfairly places the blame for the indeterminacy of the endorsement test on his Supreme Court colleagues.  The core of the problem is, instead, that church-state cases implicate legitimately competing interests.  A clear line of the sort that Justice Thomas apparently seeks would reduce discretion only at the price of also sacrificing some important constitutional value.

Justice Thomas’s Complaint

By its terms, the First Amendment, including the Establishment Clause, only restricts Congress.  Nonetheless, modern case law clearly applies the First Amendment to states, as well as the federal government.  Why? In constitutional law jargon, we say that it is because the Due Process Clause of the Fourteenth Amendment “incorporates” the First Amendment against the states.

Although Justice Thomas has suggested that he would relocate the incorporation of the Bill of Rights from the Due Process Clause to the Privileges or Immunities Clause of the Fourteenth Amendment, he accepts the broad proposition that the free speech, free press, and freedom of assembly provisions of the First Amendment bind the states, not just the federal government.

In his view, however, the Establishment Clause is different.  Rather than protecting individual liberty, Justice Thomas says, it was originally understood as a protection for states’ rights, and therefore should not be incorporated against the states.  Thus, if Justice Thomas had his real druthers, there would be no Establishment Clause litigation against the states at all.  As Justice Thomas would read the Constitution, a state could, for example, constitutionally tax all of its citizens to support, say, the Lutheran Church, Shiite Islam or Orthodox Judaism.

In his Utah Highway Patrol Ass’n dissent, Justice Thomas did not complain that his colleagues had refused to consider “disincorporating” the Establishment Clause.  He appears to realize that he cannot win that fight.  Instead, his complaint was more limited.  It went as follows:  Even accepting the premise that the Establishment Clause applies to the states, Justice Thomas said, the Court’s existing case law should be substantially changed.  In particular, he complained about what he called the “Lemon/endorsement” test for Establishment Clause violations.

The Lemon Test and the Endorsement Test

What is the “Lemon/endorsement” test?  The answer lies in the Court’s prior cases.

The Establishment Clause forbids any “law respecting an establishment of religion.”  As with other provisions of the Constitution, that language is not self-defining or self-applying.  Accordingly, the Supreme Court has fashioned legal tests to implement it.  In the 1971 case of Lemon v. Kurtzman, the Court summarized the holdings of its relevant cases, in what has come to be known as the three-part “Lemon test.”

Under the Lemon test, a law satisfies the Establishment Clause if: (1) it has a secular purpose; (2) its principal effect neither advances nor inhibits religion; and (3) it does not foster excessive entanglement between government and religion.

Cases after Lemon have glossed the first two requirements with what might be regarded as a fourth: government may not endorse religion or take actions that, from the perspective of a reasonable person, appear to endorse religion.  In his Utah Highway Patrol Ass’n dissent, Justice Thomas took aim at the Lemon test in general and the endorsement gloss in particular, arguing that the Lemon/endorsement test ought to be reconsidered.

What’s Wrong With the Lemon/Endorsement Test?

What’s wrong with the Lemon/endorsement test?  At bottom, Justice Thomas contended that it is indeterminate, because different judges will attribute different views to the hypothetical reasonable observer.  In the appeals court in Utah Highway Patrol Ass’n itself, Justice Thomas noted that the majority emphasized the state logo on the crosses placed on state land for the conclusion that the reasonable observer would see an endorsement of Christianity; at the same time, he also observed, the dissenters in the appeals court pointed to other factors that would lead their hypothetical reasonable observer to see only a privately placed memorial.

Justice Thomas is hardly the first member of the Supreme Court to complain about the malleability of the endorsement test.  He pointed out that five Justices—a majority—of the current Supreme Court have objected to the endorsement test at one point or another.  And that has been more or less true for two decades.

Given the test’s inherent squishiness and the Court’s dissatisfaction with the test, Justice Thomas thought it was time—indeed, well past time—to reconsider the Lemon/endorsement test.

The Problem With Justice Thomas’s Proposal to Reconsider the Lemon/Endorsement Test:  He Offers No Better Alternative

What Justice Thomas seemingly did not pause to consider, however, is why a legal test that has been criticized for two decades still remains on the books.  The answer, I would suggest, is that there is no better alternative.

Consider the alternative that Justice Thomas proposed in Utah Highway Patrol Ass’n.  There, and elsewhere, he has said that even as a limit on the federal government, the Establishment Clause should only forbid “actual legal coercion,” that is, it should forbid only a legal requirement that people participate in, or provide financial support for, an official government religion.

That is a staggeringly narrow view of the Establishment Clause.  It would, for instance, permit the government to print “Jesus Christ is our Lord and Savior” on all money, or to make Kali, Mars, or Wotan the official god of the United States Armed Forces.  Accordingly, other Justices who have criticized the Lemon/endorsement test have been reluctant to completely abandon all limits on government endorsement of religion.

For example, in his dissent in the 1989 case of County of Allegheny v. ACLU, Justice Anthony Kennedy criticized the endorsement test as too restrictive of religion.  He worried that a too-aggressive effort to forbid the appearance of government endorsement of religion would also forbid the government from accommodating private parties expressing their religious views – as they have a constitutional right to do, under other provisions of the First Amendment.  Consequently, Justice Kennedy proposed a test that focuses mostly on coercion.  But he did not define coercion nearly so narrowly as Justice Thomas would define it, because Justice Kennedy recognized that the Religion Clauses of the First Amendment strike a delicate balance between religious freedom for the majority and for the minority.

Consider the following telling hypothetical example from Justice Kennedy’s Allegheny dissent.  The Establishment Clause, he said there, “forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall . . . because such an obtrusive year-round religious display would place the government’s weight behind an obvious effort to proselytize on behalf of a particular religion.”

How different are the roadside crosses at issue in Utah Highway Patrol Ass’n from the hypothetical cross atop city hall?  The roadside context is less suggestive of a state effort to proselytize, but is it sufficiently less suggestive to satisfy the Establishment Clause?

That is an inherently difficult question, which explains why the lower federal court judges who have applied the endorsement test have disagreed about how to resolve it.  But no legal test will convert this difficult question into an easy one, unless that test were to ignore one or more of the very factors that make the question difficult in the first place.

In the end, Justice Thomas’s criticism of the Lemon/endorsement test is unfair because it demands the impossible:  a clear, simple test in an inherently conflicted area of law.

Michael C. DorfMichael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at DorfonLaw.org.
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  • DaveLG100110011001

    I am not a lawyer. 
    I am not surprised Justice Thomas did not provide a solution. 
    I am also doubtful he wrote any parts of his dissent.

    The second paragraph under Justice Thomas’s Complaint was very interesting to me. I will have to brush up on my reading to understand the full ramifications. Thanks.

  • Anonymous

    Thomas did offer a better alternative to the Lemon test: Returning to the proper construction of the word “establishment” as meaning, “church established by law” instead of the erroneous current construction of implying endorsement. Incorporation aside, this is where the conflict lies.

    Your hypothetical about states might choose to tax all of its citizens to support a particular religion ignores the fact states have their own constitutions and courts to protect against such mischief and do not need any outside intervention.

    As far as Establishment Clause incorporation is concerned, it was tried in 1876 and failed. This makes clear there was no congressional or public understanding of the 14A incorporating the First Amendment against the states.

  • Dilane25

    I am not a lawyer, I am a teacher and I am concerned that this nation is going to turn into an atheistic republic.  In the attempts to level the playing field, Christianity is being targeted and rights are being stripped away.  Let us contemplate other nations that have called for the “non-endorsement” of religion…They are communist in structure even though they may call themselves republics with quasi-democratic processes and the people have no freedom.  In the “one-for-all and all-for-oneness” citizens in these countries do not have the freedom to worship and are persecuted.  Let us not be so eager to appease the atheist.  They have not been harmed or discriminated against as a result of our informal Christian establishment. No, we do not enforce Christianity as the official religion but in honoring our Christian roots we do the  nation or individual no harm.  In past decades there have not been persecutions, incarcerations or punishment as a result of someone practicing any particular faith. But in an effort to cater to atheist, who are generally confused and usually very angry people denying their unhappiness with others contentedness, we are persecuting Christians in particular by stripping them of freedoms little by little.  Its like boiling frogs in water, slowly with tepidness until they are cooked and don’t know it.  We know the intent of the Fathers of the Constitution and let us not forget it or we are doomed.  “Politcal Correctness”  is foolishness when it muddles truth and makes right wrong and wrong right.  If one chooses to ignore the direction these battles are taking us in or supports these arguments then he/she is probably an atheist or agnostic and doesn’t know it.  Be aware! 

    • Eric

      “…They are communist in structure even though they may call themselves
      republics with quasi-democratic processes and the people have no freedom.” (On what evidence do you base this statement?)

      “…in honoring our Christian roots…” (Do you mean to suggest that each and every American citizen has “Christian roots”? If so, please cite some evidentiary support for your position.)

      “….atheist, who are generally confused and usually very angry people denying their unhappiness with others contentedness…” (What evidence do you have to support this generalization?)

      “We know the intent of the Fathers of the Constitution…” (Do you mean to suggest that you can read the minds of men who have been dead for over 200 years?)

    • Eric

      “…They are communist in structure even though they may call themselves
      republics with quasi-democratic processes and the people have no freedom.” (On what evidence do you base this statement?)

      “…in honoring our Christian roots…” (Do you mean to suggest that each and every American citizen has “Christian roots”? If so, please cite some evidentiary support for your position.)

      “….atheist, who are generally confused and usually very angry people denying their unhappiness with others contentedness…” (What evidence do you have to support this generalization?)

      “We know the intent of the Fathers of the Constitution…” (Do you mean to suggest that you can read the minds of men who have been dead for over 200 years?)

    • rm

      unfortuanately this opinion is not imformed in regard to religious persecution, incarcerations or punishment as a result of someone practicing a particular faith.  These actions have occurred many times in US history.  I personally have been the recipeint of some of these actions in my life and I am a Protestant Christian.  The individuals promoting these actions claimed they were Christians also. History is full of examples of this kind of thing happening and it is the reason our forefathers wrote the 1st amendment the way the did.  Many of them had experiece with these type of issues.   As Christians we sometimes see the secular atheist groups attacking our christian views and using the Goverment to try and stop the free expression of religious beliefs by individuals.  This is also against the Constitution and in fact is a way of trying to promote their own religious belief system and force it on others.   There is a very fine line here that are forefathers wisely drew and we even as christians must respect and uphold it the way our wise christian founders and writers of the Constitution did.  It is what has made America a great nation and has caused and allowed religion to flourish.   Communism tries to outlaw religion and religious expression.  This is not what our forefathers believed in.  But, they also didn’t believe goverment had a role in promoting religion either.

  • Ted Harvatin

    Hey I have an idea. how about reading the words of the Constitution, Professor. “Congress” shall make no law. I don’t see anywhere in this case that Congress did anything. Ergo, the federal courts ought to butt out.  Yes I know this is inconistent with Constutional jurisprudence but if it’s between the clear intent of The Founders and law professors who butter their bread by muddying up the Constitution, I would prefer the former over the latter.

  • Warren Norred

    Sure, conjure up unrealistic scary scenarios of establishment religion (which we had at the beginning of this country), assume that religious activity is always negative, BUT ignore, allow and continue the religious practices of the federal government when you like it (redistribution of wealth) , and conclude that we simply MUST continue to have rules that hamstring states that do nothing but recognize the importance of religion in the lives of its citizens. 

    Got it. Federal religion worshiping the state, good. Citizens and states worshiping God, bad. 

  • http://profiles.google.com/dyannx Dyann Jaxon

    It is widely understood that the unimproved ‘roadside’ is commonly used by pedestrian and community for ‘memorials’, and not the Government’s “endorsement” of anything.  
    Because the “public” use it as a memorial (presumably of any and all faiths), should not interfere with or be misconstrued by anyone to “place the government’s weight behind an obvious effort to proselytize on behalf of a particular religion” because
    1) these spotty memorials are not “obtrusive” (relatively speaking)2) the government’s ‘weight’ is not behind them3) the government’s effort or no effort is not ‘obvious’ to anyone, therefore does not show the government’s ‘endorsement’ of anythingYour hypothesis does not hold weight nor legitimacy in this decision. I suggest the issue is being over-thought and over-litigated.K.I.S.S. ;-)

    • Eric

      “It is widely understood that the unimproved ‘roadside’ is commonly used by pedestrian and community for ‘memorials’…” (Can you please cite some evidence to support this statement?)

      “Because the “public” use it as a memorial (presumably of any and all faiths)….” (Can you please cite some examples of non-Christians using a cross as a memorial?)

      “…the government’s effort or no effort is not ‘obvious’ to anyone…” (What evidence is this statement based on?)

    • Eric

      “It is widely understood that the unimproved ‘roadside’ is commonly used by pedestrian and community for ‘memorials’…” (Can you please cite some evidence to support this statement?)

      “Because the “public” use it as a memorial (presumably of any and all faiths)….” (Can you please cite some examples of non-Christians using a cross as a memorial?)

      “…the government’s effort or no effort is not ‘obvious’ to anyone…” (What evidence is this statement based on?)

  • William Balint

    Mr. Dorf, you, like most poorly educated and illogical fools, use deception, omission, and outright lies to achieve your socialist goals.

    1. The Constitution clearly shows that ONLY Congress can make no rule regarding religion.  By the express INCLUSION of Congress, the states are omitted.

    2.  How ignorant would someone have to be to believe that the courts, wielding the least amount of power as the weakest branch, could, by its socialist members opinions, alter the very document that creates them?  That is by far the most absurd claim made by ignorant college educated morons.

    I feel sorry for such pathetic individuals.

    • Eric

      “…the courts, wielding the least amount of power as the weakest branch…” (What evidence is this statement based on? Are you familiar with the “checks and balances” system?)

    • Eric

      “…the courts, wielding the least amount of power as the weakest branch…” (What evidence is this statement based on? Are you familiar with the “checks and balances” system?)

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  • Joe Simmons

    There will be some amount of uncertainty when balancing interests like
    that of religious freedom and government non-endorsement given the
    specific facts of a case, but it sounds as if the Lemon Test itself
    encourages inconsistent application.

    Compare this case to that of the Mojave desert cross in which a land
    transfer (not obvious to park goers) saves the cross, after the fact.
    Inconsistency of application is different from uncertainty of results.
    The problem seems to be the “gloss” on the first two parts of the Lemon
    Test.

    Allowing substitution of two fact-based parts of a test with a gloss
    that is almost entirely subjective opens the door to widely inconsistent
    decisions.

    Applying the first two parts of the test to this case, we might ask
    whether monuments commemorating fallen state troopers have a secular
    purpose. Answer: yes. Obviously the plaintiff wishes to frame the
    question as whether the monuments in the shape of crosses serve a
    secular purpose. But that is not responsive to the legal question. The
    plaintiff’s question intimates that there cannot be a secular purpose if
    a symbol is religious. While there is arguably a religious purpose,
    there is still a secular one that satisfies the first part of the test.

    Secondly, is the principal effect to advance or inihibit religion? When I
    see crosses next to the road, I recognize it as a memorial. If I were
    ignorant of that practice, I merely recognize it as a religious symbol.
    As far as “advertising” Christianity, it is somewhat unspecific and
    passive. Do I stop at the next church? Feel compelled to accept Jesus
    then and there? Wonder if I should be a Catholic, Baptist, or Mormon?
    Religion is no more or less advanced by a cross on the side of the road
    than when I pass a church or see a necklace with a cross on it.
    Obviously the government is the actor here – but that’s a given. If the
    sole question were whether the government placed, or allowed to be
    placed, a symbol with religious connotations, the caselaw would be good
    and simple.

    By glossing over these first two parts of the test, the precise shape of
    a monument can take precedence over whether the act has a secular
    purpose, and the fact that the government is the actor (which is already
    a given) takes precedence of the whether the principal effect advances
    religion. While there might be some effect on the advancement of
    religion to a “reasonable person,” to assert it is the principle effect
    under these facts is unconvincing. It is merely a possible and tenuous
    effect. Knowing (or not knowing) that the government placed the object
    should not be dispositive. It is the nature of the act that is in
    question. The courts are able to question that act because the actor is
    the government.

    Your questions pose a good challenge:

    “How different are the roadside crosses at issue in Utah Highway Patrol
    Ass’n from the hypothetical cross atop city hall?  The roadside context
    is less suggestive of a state effort to proselytize, but is it
    sufficiently less suggestive to satisfy the Establishment Clause?”

    Applying the first 2 parts of the Lemon Test, does the cross atop city
    hall serve a secular purpose? ‘Decorative’? To call it merely decorative
    (or a place for birds to land) can be dismissed as a transparent ruse.
    Anything can be called decorative but it doesn’t explain why it’s there.
    ‘Merely honoring the Christian history of our nation (similar to
    arguments about Confederate flags)’? Again a flimsy excuse or at least
    almost indistinguishable from saying ‘honoring Christianity now’. Unlike
    the purpose of the roadside crosses to honor fallen officers, the
    officials would have a hard time articulating a secular purpose.

    Secondly, is the principle effect the advancement/inhibition of
    religion? Granted it’s still a passive symbol, unspecific to any
    particular sect of Christianity. But it is atop a government building.
    Context matters. The principle effect of placing a cross on a government
    building is to show an endorsement of that religion. It’s essentially a
    res ipsa situation. I understand the temptation to gloss the two parts
    here, when any alleged secular purpose is unconvincing. If there is no
    reasonable secular purpose, what else might the symbol do but advance
    religion? Aside from the greatly increased likelihood of a reasonable
    person feeling that are being proselytized, it simply appears that the
    government is trying to prostelytize. I would feel the same way if I was
    greeted by a cross at a state border with the words “Welcome to
    [State]” printed across it.  Any claim of a secular purpose is undermind
    by the context and it increases the likelihood that the state is simply
    trying to proselytize.

    Is the existence of a state logo on a roadside cross sufficiently more
    suggestive of an effort to proselytize than a cross in a state park?
    That seems an awfully technical distinction unrelated to whether the
    crosses serve a secular purpose or somehow advance religion. While the
    facts should be determinant, we should not gloss over inconsistent
    application of a constitutional standard.

    And to other commentors: the 1st Amendment’s Establishment Clause is
    clearly incorporated against the states. Making disparaging comments
    while ignorantly claiming otherwise makes you look all the worse.

  • Joe Simmons

    There will be some amount of uncertainty when balancing interests like
    that of religious freedom and government non-endorsement given the
    specific facts of a case, but it sounds as if the Lemon Test itself
    encourages inconsistent application.

    Compare this case to that of the Mojave desert cross in which a land
    transfer (not obvious to park goers) saves the cross, after the fact.
    Inconsistency of application is different from uncertainty of results.
    The problem seems to be the “gloss” on the first two parts of the Lemon
    Test.

    Allowing substitution of two fact-based parts of a test with a gloss
    that is almost entirely subjective opens the door to widely inconsistent
    decisions.

    Applying the first two parts of the test to this case, we might ask
    whether monuments commemorating fallen state troopers have a secular
    purpose. Answer: yes. Obviously the plaintiff wishes to frame the
    question as whether the monuments in the shape of crosses serve a
    secular purpose. But that is not responsive to the legal question. The
    plaintiff’s question intimates that there cannot be a secular purpose if
    a symbol is religious. While there is arguably a religious purpose,
    there is still a secular one that satisfies the first part of the test.

    Secondly, is the principal effect to advance or inihibit religion? When I
    see crosses next to the road, I recognize it as a memorial. If I were
    ignorant of that practice, I merely recognize it as a religious symbol.
    As far as “advertising” Christianity, it is somewhat unspecific and
    passive. Do I stop at the next church? Feel compelled to accept Jesus
    then and there? Wonder if I should be a Catholic, Baptist, or Mormon?
    Religion is no more or less advanced by a cross on the side of the road
    than when I pass a church or see a necklace with a cross on it.
    Obviously the government is the actor here – but that’s a given. If the
    sole question were whether the government placed, or allowed to be
    placed, a symbol with religious connotations, the caselaw would be good
    and simple.

    By glossing over these first two parts of the test, the precise shape of
    a monument can take precedence over whether the act has a secular
    purpose, and the fact that the government is the actor (which is already
    a given) takes precedence of the whether the principal effect advances
    religion. While there might be some effect on the advancement of
    religion to a “reasonable person,” to assert it is the principle effect
    under these facts is unconvincing. It is merely a possible and tenuous
    effect. Knowing (or not knowing) that the government placed the object
    should not be dispositive. It is the nature of the act that is in
    question. The courts are able to question that act because the actor is
    the government.

    Your questions pose a good challenge:

    “How different are the roadside crosses at issue in Utah Highway Patrol
    Ass’n from the hypothetical cross atop city hall?  The roadside context
    is less suggestive of a state effort to proselytize, but is it
    sufficiently less suggestive to satisfy the Establishment Clause?”

    Applying the first 2 parts of the Lemon Test, does the cross atop city
    hall serve a secular purpose? ‘Decorative’? To call it merely decorative
    (or a place for birds to land) can be dismissed as a transparent ruse.
    Anything can be called decorative but it doesn’t explain why it’s there.
    ‘Merely honoring the Christian history of our nation (similar to
    arguments about Confederate flags)’? Again a flimsy excuse or at least
    almost indistinguishable from saying ‘honoring Christianity now’. Unlike
    the purpose of the roadside crosses to honor fallen officers, the
    officials would have a hard time articulating a secular purpose.

    Secondly, is the principle effect the advancement/inhibition of
    religion? Granted it’s still a passive symbol, unspecific to any
    particular sect of Christianity. But it is atop a government building.
    Context matters. The principle effect of placing a cross on a government
    building is to show an endorsement of that religion. It’s essentially a
    res ipsa situation. I understand the temptation to gloss the two parts
    here, when any alleged secular purpose is unconvincing. If there is no
    reasonable secular purpose, what else might the symbol do but advance
    religion? Aside from the greatly increased likelihood of a reasonable
    person feeling that are being proselytized, it simply appears that the
    government is trying to prostelytize. I would feel the same way if I was
    greeted by a cross at a state border with the words “Welcome to
    [State]” printed across it.  Any claim of a secular purpose is undermind
    by the context and it increases the likelihood that the state is simply
    trying to proselytize.

    Is the existence of a state logo on a roadside cross sufficiently more
    suggestive of an effort to proselytize than a cross in a state park?
    That seems an awfully technical distinction unrelated to whether the
    crosses serve a secular purpose or somehow advance religion. While the
    facts should be determinant, we should not gloss over inconsistent
    application of a constitutional standard.

    And to other commentors: the 1st Amendment’s Establishment Clause is
    clearly incorporated against the states. Making disparaging comments
    while ignorantly claiming otherwise makes you look all the worse.

  • Margolise

    “As Justice Thomas would read the Constitution, a state could, for
    example, constitutionally tax all of its citizens to support, say, the
    Lutheran Church, Shiite Islam or Orthodox Judaism.”

    - I’m sure that any reasonable American citizen would agree that that would not be a good thing. However,  I propose that the best way to reconcile the undesirability of such a scenario with the reality of the Constitutional text would be to amend the Constitution to apply such prohibitions to the states; otherwise we risk running afoul of the 10th Amendment, which reserves to the states ALL powers not specifically designated to the federal government.  I’m surprised the latter merits no mention in this article. 

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