Sunday, March 10, 2019
Prof. Carl Esbeck (Missouri) sent along this comment on the Memorial Cross case that was argued recently at the Supreme Court. I am re-posting it here with his permission:
The Bladensburg WW I Memorial Cross:
Government Expression of Religious Content and the Establishment Clause
On February 27, 2019, the Supreme Court of the United States heard oral argument in consolidated appeals Nos. 17-1717 and 18-18, involving the Town of Bladensburg World War I Memorial in the shape of a Celtic-style Latin cross said to be in violation of the Establishment Clause of the First Amendment. The American Humanist Association had sued the Maryland-National Capital Park and Planning Commission, a bi-county agency and current holder of the title and overseer of the land on which the memorial is situated. The American Legion, a national veterans association, was permitted to intervene on the side of the bi-county Commission. The American Legion, along with a committee of mothers who had lost sons in the war, were involved in the project in Maryland’s Prince George’s County from 1919 to 1925 in designing, raising money, and dedicating the memorial to men from the county who had perished in the Great War. The U.S. Office of Solicitor General, as amicus curiae, was granted permission to argue on behalf of the memorial’s constitutionality.
The federal district court in Maryland found the memorial did not violate the First Amendment, but a panel of the U.S. Fourth Circuit Court of Appeals concluded that the Latin cross composing the Bladensburg WW I Memorial, the foremost symbol of Christianity, was government sponsorship of a religion and thus in violation of the Establishment Clause. In lieu of taking down the memorial or altering the monument so it was no longer a cross, the circuit court suggested the bi-county Commission explore whether the memorial could be moved to private land or that the Commission transfer the land into private hands.
When the U.S. Supreme Court granted these appeals there was little doubt by anyone that the Justices have in mind reversal. It is just too much to suppose that a memorial to our nation’s war dead, one that has stood for almost a century without objection to its religious content, is going to be torn down or privatized by the Judicial Branch. The remaining suspense, rather, is the rationale to be employed by the High Court majority in explaining why the Memorial Cross is not a transgression of church-state relations. Will the holding be heavily fact-bound and thus so narrow as to be of limited precedential value? That was the path urged by counsel for the bi-county Commission. That approach drew little enthusiasm during the “hot bench” oral argument. SCOTUS does not exist to right individual wrongs, but to lay down general principles of law to guide the lower courts.
Lawyers for The American Legion and the Solicitor General were more ambitious. They asked that the Court’s new conservative majority seize the opportunity for a more sweeping change in the law. Specifically, they urged that the Court abandon the much-reviled test of Lemon v. Kurtzman (1971), as well as Lemon’s “no-endorsement” spin-off and its “reasonable observer” excretion. Lemon lead to erratic results because it invited judges to substitute their own values under a pretense of objectivity. It had not been used by the High Court for years, yet never overruled by name. The lower courts have persisted in following Lemon because no comprehensive verbal map has been substituted in its place. Besides, Lemon is tempting because it allows trial judges to satisfy their personal preferences while looking like they were following the law. On the other hand, while there is agreement among conservatives that they do not like Lemon and all its children, there is less consensus about what ought to be the new no-establishment test. Indeed, the Court’s past struggles with how to articulate a general principle for the task of policing the boundary between government and religion means that the Justices here may well generate multiple opinions but no majority. Still, that is the sort of mishmash that the Chief Justice hates. So look to C.J. Roberts to step up and labor to get five Justices on a single opinion. Justices Breyer and Kagan are expected to uphold the memorial but write more narrowly.
Government expression of religious content has long been the subject of lawsuits by secular-oriented plaintiffs in cases of religious symbols on government property, as well as memorials, Christmas holiday displays, and God-referencing pledges, mottos, and anthems. These are not instances of asking government to “accommodate” the religion of one of its citizens. Rather, the government itself is the speaker and government has no rights under the Free Speech Clause. The First Amendment is not there to protect the government from the people, but to protect the people from the government. Further, the Free Exercise Clause is inapplicable because the act of the government speaking through a passive symbol or motto does not entail religious dissenters having to do anything contrary to their faith or to refrain from doing anything that their faith demands. If nothing is required of a claimant that countermands his or her religious tenets, then the exercise of religion is not burdened.
That leaves the Establishment Clause and the scope of its operation. The Establishment Clause states that government has no authority to “make … law” about “an establishment of religion.” So how does the Establishment Clause work concerning government expression of religious content unwanted by the plaintiffs? Despite the frequently heard whining about the Establishment Clause being in hopeless disarray, the High Court has laid out steps for breaking down that question:
First, the expression by the government or by someone in the private sector? The Establishment Clause restrains only the government, not private speakers. On the other hand, if expression in the private sector is adopted by the government as its own, then the government must answer for the speech. Pleasant Grove City, Utah v. Summum (2009). If the offending message is from both the government and private speakers, that does not change the analysis. The Establishment Clause requires a focus on the government’s message, even if the messaging is shared with others.
If this is private religious speech in a public forum of the government’s dedication, then the Establishment Clause does not apply. By allowing into the forum speech without regard to its content, including religious content, the government is the sponsor of none. Indeed, the Free Speech and Free Exercise Clauses protect religious speech from discrimination. Widmar v. Vincent (1981); Rosenberger v. Rector and Visitors of UVA (1995).
Second, government speech is not forbidden merely because it happens to coincide or harmonize with a religious tenet. Commonplace is the overlap of law with morality where the codified moral postulate is consistent with a widespread religious teaching. Laws against murder or theft are not unconstitutional because their prohibitions are also prominent teachings by major religions. See McGowan v. Maryland (1961) (Sunday as required day of rest free of labor and retail); Harris v. McRae (1980) (a law encouraging a woman to carry her unwanted pregnancy to live birth).
Third, given that government has no authority to “make … law” about “an establishment of religion,” this surely calls for an inquiry into the law’s purpose. The judiciary is to probe into the government’s purpose or object in maintaining this symbol with its religious content. The purpose must not be to aid or otherwise advance or support religion as religion.
The government can speak about history, art, architecture, archaeology, ethics, etc., where the topic has religious content. A history class can teach the Protestant Reformation. A class on the Bible in English Literature is common in the course catalogue at state universities. Public law schools have electives in the First Amendment and church-state relations. A city gallery displaying religious art is quite ordinary. You cannot study art, music, or architecture without studying the role of religion in profoundly shaping all of those forms. These are not establishments. As Justice Clark wrote for the Court in Abington Township Sch. Dist. v. Schempp (1963), “[I]t might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. … Nothing we say here today indicates that such study … may not be effected consistently with the First Amendment.”
However, the boundary between church and state is crossed when the government’s expression is no longer about religion but is religion. Justice Kennedy, concurring in part and dissenting in part in County of Allegheny v. ACLU (1989), gave the illustration of a municipality mounting a permanent Latin cross on the roof of city hall. The purpose of the city’s placement of the cross is nearly impossible to explain apart from having the object of elevating the merits of Christianity.
The purpose test offers a quick and easy resolution to the Bladensburg WW I Memorial Cross. WW I cemeteries in Europe, with their poppy fields and row upon row of white crosses, apparently formed a picture in the minds of Americans in the early 1920s as a fitting symbol for memorials to those who fought in the Great War. There is evidence in the record that such a vision was behind the design of the Bladensburg Cross. If so, then the Town of Bladensburg’s purpose was secular. That is not to say that the Latin cross is not the foremost symbol of Christianity. It is. However, there are two meanings. If the government’s meaning was the nonreligious one, then there is no violation of the Establishment Clause. Of course, any purpose test does not unilaterally “take the government’s word for it.” Rather, the test looks at the context to consider if the asserted purpose is believable or a pretext.
There are problems with the quick and easy resolution. If the American vision in the early 1920s was a nonreligious use of the cross, then why did Jewish members of the armed forces insist on a Star of David to mark their graves? Still, it might be that in designing the Bladensburg Cross officials at the time had a tin ear to Jewish sensitivities. As with any symbol there might be two or more meanings depending on the intent of the “speaker,” and here government has produced some evidence that its purpose was the secular vision.
Does upholding the constitutionality of the Bladensburg Cross mean that a memorial cross newly placed today is also constitutional? No. At oral argument the Justices asked the lawyers to assume a twenty-first century memorial in memory of a mass shooting of students and teachers at a public school. Contemporary American society is more religiously plural and more attentive to minority sentiments, including those of our increasingly nonreligious neighbors. It is near impossible, even in America’s more rural communities, that today public officials could erect a stand-alone Latin cross and believably maintain that their purpose was a nonreligious remembrance of the victims.
What if the government’s purpose is mixed? The law has faced this problem before. If, in the absence of the religious purpose, the government still would have proceeded with its course of expression for other reasons, then we do not have an establishment. See Mt. Healthy City Sch. Dist. v. Doyle (1977).
Fourth, is the symbol under review just the cross, pedestal, inscriptions, and plaque with names? Or is the symbol under scrutiny the entire Veterans’ Memorial Park with its additional war memorials added at later times? Presently the Bladensburg Cross is somewhat isolated in a traffic circle, separate by a two-lane street from the larger Veterans’ Park.
As an initial matter this question is framed by the Plaintiff’s pleading. The complaint challenges only the Bladensburg Cross, not the many other memorials in the Veterans’ Park. On the other hand, the bi-county Commission contends that to the extent context is relevant to the government’s purpose, the entire Park should be considered. This is an expected part of most defenses of a government symbol. That the balance of the Veteran’s Park is secular works in favor of the Commission.
Fifth, a different but related question is whether the lawsuit requires an examination of the cross, pedestal, inscriptions, and plaque with names as the symbol in question, but nothing more. That is, should the focus here be on the Bladensburg Cross as a stand-alone memorial? Or does the lawsuit require an examination of the Bladensburg Cross in light of how the memorial and its grounds are actually used. The record built by Plaintiff shows that the government held events at the cross for Memorial Day and Veteran’s’ Day ceremonies, as well as other government-sponsored events. Some of these events had religious content, such as prayer and hymns. This evidence favors the Plaintiff. Again, this brings the question back to what is meant by considering the government’s purpose for the symbol. Is the memorial’s actual use relevant? From their briefs we know the parties are very aware of the evidence concerning ceremonial activities at the cross, but neither party was clear as to how this should be factored into the purpose test.
Sixth, what if the government’s purpose has changed over time? The WW I Memorial Cross was rededicated in 1985 as a memorial to all veterans. Is the issue the government’s purpose when the message was first expressed back in the early 1920s? If the government’s purpose has evolved, it does not make sense to say what is controlling is the past. In this legal challenge, the Humanist Association seeks prospective injunctive relief. It does not seek damages for past harms. With the sought-after relief focused on the present and prevention of ongoing injury, it would seem that the government’s present purpose in maintaining the symbol is what ultimately matters in Establishment Clause litigation. Past purposes add materially to the contextual background, but the ultimate issue is the government’s purpose in the present.
Seventh, which government are we talking about when it comes to purpose? The Town of Bladensburg controlled the site of the cross in the 1920s. Later traffic needs saw the Maryland State Roads Commission assume control of the land on which the cross is situated. Still later, in 1961 the cross and the larger Veteran’s Memorial Park were placed under the control of the Maryland-National Capital Park and Planning Commission. Since then the bi-county Commission has provided grounds keeping and Illumination, as well as paid for repairs. The Commission was certainly the proper party to have been sued, for only the Commission is in a position to grant the relief Plaintiff now seeks. Yet, it would seem that the inquiry into governmental purpose at any one point in time is necessarily addressed to the government entity in control of the site at the time in question. It is certainly awkward to insist that the bi-county Commission, as successor in title, be responsible for any unconstitutional purposes of the Town of Bladensburg or the state roads commission. Perhaps this is just another way of observing that in administering the purpose test what ought to ultimately matter is the present purpose of the bi-county Commission in maintaining the Memorial Cross.
Eighth, where the Lemon test interjected chaos into Establishment Clause analysis was by insisting that the judiciary also inquire into the effects of a symbol on exposed members of the public. As with art, the effects of a symbol are going to vary with the audience. The “eye of the beholder” is a subjective standard. And as Americans have become more diverse, the “messages received” by a given audience has necessarily multiplied. Just to illustrate, a 2012 observer of the Bladensburg Cross, a local pastor, thought it blasphemous because it was a utilization of his Savior’s cross to extol war. In that view, the memorial is not religious imagery but a co-optation of religion to promote militarism. In the past, the Justices tried to account for the subjectivity of the effect test by constructing an “objective observer” as an audience of one. But this was soon seen for what it was: the construction of an observer that held values remarkably like those of the judge sitting on the case. After all, what federal trial judge does not think that she is objective, detached, and able to put herself in the shoes of her most cosmopolitan fellow citizens.
Quite aside from the unworkability of the effects test, there is a deeper flaw. The Establishment Clause (indeed, the entire Bill of Rights) protects people from their government. So the purpose test makes sense. But the effects test seeks to hold the government accountable not for its own actions, but for the multifarious and conflicting responses of the many people who are exposed to the symbol. The Establishment Clause does not hold the government accountable for the actions and worldviews of its citizens. There is no accounting for an audience’s tastes, including bad tastes, extreme tastes, hypersensitive tastes, and so on. All the more so when it comes to a foundational belief and topic like religion. The test is an invitation to get different constitutional rulings from region to region and—let’s be honest—judge to judge. We do not need an Establishment Clause jurisprudence that further Balkanizes our nation. Preventing that very thing was one of the blessings hoped for upon the clause’s adoption.
Plaintiffs here want to talk about the size and height of the Memorial Cross relative to other war memorials, including those in the Veterans’ Park. They want to talk about the memorial’s placement near a busy highway as opposed to a quiet out-of-the-way area. They want to talk about how big it is. As Justice Kagan said at oral argument in exacerbation with Plaintiff’s counsel, “[W]hy does it even matter .… I have been struck, some of these questions about how people process these symbols and what messages they convey, that you’ve sort of accepted this idea that that’s what we should be thinking about.” The bi-county Commission, in turn, counters with the Memorial Cross being in place for almost a hundred years, being prominently adorned with the secular seal of the American Legion, and that it is only 32 feet high rather than Plaintiff’s claim that it stands four stories high. The effects test is to turn SCOTUS into an interior decorator complete with tape measure and color chart. Chucking the effects test relieves the Supreme Court of having to consider all sorts of sticky evidence.
Ninth, the American Legion and Office of Solicitor General, as well as several amici for Petitioners, argue for replacing the Lemon test with one of two options. One option is a coercion test. The obvious problem with a coercion test is that religious coercion is already prohibited by the Free Exercise Clause. At oral argument, Justice Ginsburg pointed out this weakness to counsel for the American Legion. The Legion’s lawyer responded by giving an illustration where there was no redundancy. He describe a tax assessment to support the ministers of the state church as not covered by free exercise. But it is coercive of a person’s religion to be compelled to pay a tax earmarked for the salary of ministers when the taxpayer believes they teach a false religion. Now if the person has no religion and yet is forced to pay the tax, then counsel for the Legion has a point. Nonetheless, for more than half a century the Court has been saying that coercion is not a required element of a claim under the Establishment Clause. In its school prayer cases in the early 1960s, students were permitted to opt out of the teacher-led prayer. Still the Court held that the prayer was in violation of the Establishment Clause. There is no prospect that the current Court has any taste for going back on long-accepted cases like Engle (1962) and Schempp (1963).
The second alternative to Lemon is a test based on the original public meaning of the Establishment Clause. That requires a careful look at what is generally termed “a history of the founding.” This was the test followed in Town of Greece v. Galloway (2014), upholding meetings of the town board that were opened with prayer by a local volunteer cleric. If the Court takes the path of being guided by historical practices at the founding, there are two such relevant histories. One is the drafting history of the First Amendment in the First Federal Congress. Congress composed and debated the First Amendment from May to September 1789, and that amendment (along with the entire Bill of Rights) was debated and eventually ratified in the states during the balance of 1789 on through 1790. Also to consider is the early-on regard for the Establishment Clause by federal officials when doing federal business. The other relevant history is the process of disestablishment in the several states that took place from 1776 on through the last disestablishment in Massachusetts in 1833. Both histories would have to be searched to determine what was regarded by the founding generation as an establishment, both for examples and general principles.
Even for those not tied to “originalism,” it certainly makes sense for the Court to take seriously what was regarded as an establishment in the founding period and what was not. This approach gives the American public more confidence that the Court is not “just making it up,” that there is a rule of law that the Court is doing its best to follow.
Tenth, neglected so far is the question of the harm to the Plaintiff. A showing of Plaintiff’s harm or injury is relevant to standing. But the nature of the injury also goes to the claim on the merits. What injury or damage is the Establishment Clause designed to safeguard people and organizations from suffering? It turns out that there are two possible claimants when the Establishment Clause is implicated by an unwanted government expression of religious content.
(a) There are plaintiffs, like the American Humanists, who disagree with the religious message and oppose the government expressing it. These plaintiffs view the government’s message as a preference for a religion or religion in general. They may be of a different religion or of no religion. In either event, there is no authority in government to prefer religion as religion, or to take sides in explicitly religious matters. In the natural course of events, presumably these plaintiffs have unwanted exposure to the government’s message. Under the Court’s precedents, that is all that is required to have standing. McCollum v. Bd. of Educ. (1948); Marsh v. Chambers (1983). A proper policing of the boundary between church and state does not require a showing of coercion; the task is to keep in right relationship the institutions of religion and government. Again, it is a test of the government’s purpose; was the purpose nonreligious or was it to preference religion.
(b) There are potential plaintiffs who do not disagree with the religious message, but nevertheless they oppose the government expressing it. What drove disestablishment in the new American states, 1776 – 1833, was the principle that religion is a matter for the voluntary sector. Rather than support a state church, the government best leave churches and other religious organizations to their own devices, as voluntary works in the private sector, to wax or wane in accord with the appeal of their message, the zeal of their followers, and the effectiveness of their ministries. That churches and other religious organizations remain voluntaristic is essential to their health, for too close an embrace by the government will detract from, and even co-opt or corrupt, the churches and similar houses of worship. The American experience is that the enforcement of a boundary between church and state is good for both. This structure, in turn, furthers the freedom of both the religiously devout and those of no faith.
In this case, the Humanists spoke for those of no faith. No party spoke up for the potential harms to religion. This is an inherent flaw in making law by litigation; only the arguments of the parties are fully heard. From historical experience, detailed below are the sorts of harms incurred by the religiously devout:
(i) The religious symbol gets diffused or watered down by the government’s alternative message. That makes clear communication more difficult for churches.
(ii) Government co-opts a religious symbol and bends it to the needs of the government. Government thereby uses religion as a tool to advance state policies. Those who oppose the government may then also oppose the religion.
(iii) The government may appropriate a religious symbol because it is unifying. The government needs unity. But it is not the role of the church to help unify, stabilize, and sustain the state. The latter is a harmful using of the church.
(iv) The message confusion dulls the prophetic voice of the church. The voice of the church is looked on with skepticism because of a perceived closeness of church and government.
(v) There are times when the church is called to boldly criticize and thereby check the government. This is one layer of the checks and balances built into our democratic system. But the ability of the church to check the government is compromised by message confusion. Church officials may even refrain from such criticism because they do not want the government to get upset and then withhold sponsorship of the church’s symbol.
(vi) Government-favored religion can become the religion of the culture. Cultural religion is never the real thing. It not only does not restore, but it dulls one to the need for a genuine decision and commitment.
(vii) The religion of culture can become a Civil Religion. This is a mixing of God and country, a blend of patriotism with belief. Civil Religion competes with genuine religion. As Justice Kennedy stated for the Court in Town of Greece v. Galloway (2014), it is no more acceptable to establish Civil Religion than to establish Christianity.
(viii) Putting the power of government behind the symbol of Christ’s sacrifice and death on a cross in vicarious payment for humanity’s sin is heresy to Christians. Christ’s kingdom is not of this world. Christ did not come in civil power and seek a kingship in Palestine, albeit many of his followers wanted just that.
There are a lot of moving parts to the case of the Bladensburg WW I Memorial Cross. Reversal is a near certainty, but the rationale for that result is up for grabs. As Jeffrey Wall, Acting Solicitor General, said at oral argument, “The problem with the current law is that all of the current cases are hard.” Let us hope that SCOTUS leaves us with something better than we now have.