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.