Does Exposure = Endorsement = Establishment? The 7th Circuit’s Plea to the Supreme Court
If there was any doubt that the current corpus of Establishment Clause jurisprudence would leave any serious scholar or lawyer’s head spinning, the Seventh Circuit’s recent decision in Doe v. Elmbrook School District, and the sparring opinions therein, are perfect examples of why. The majority opinion wastes no time (perhaps unintentionally) demonstrating the trouble in its “Discussion” section when it traces the different precedents that may be relevant to the question presented by the facts of the case (for those of you who do not know, the School District sought to hold annual high-school graduations in a local church that contained ample traditional, Christian images, not to mention, other Christian items). The fact that there are multiple analytical approaches to detecting an Establishment Clause violation would seem to spell trouble from the start for the casual observer.
But moving right along, the majority started with the so-called “Lemon” test, which asks whether a law lacks a secular purpose, has the primary effect of advancing religion, or results in too much entanglement between the government and religion. If the law violates any of those three prongs it cannot pass constitutional muster. Yet the majority did not stop there; instead, it acknowledged the “Endorsement Test” proffered by former Justice Sandra Day O’Connor as another way of framing the second prong of Lemon, since of course the second prong of Lemon, by its own terms, is ambiguous as a matter of precedent (perhaps that should have been enough of a hint for clearer rules). Under Justice O’Connor’s formulation, after considering the totality of the circumstances in a particular case, judges must decide, on a case-by-case basis, whether the government’s action conveys a message of endorsement to the reasonable observer mindful of the circumstances (and as the opinions in Elmbrook suggest, there is even disagreement over what the reasonable observer looks like-adherent or non-adherent?). Lastly, the majority noted that the presence of coercion–pressure to participate in religion–violates the Establishment Clause (although rightly, the same opinion also notes that this theory of violating the Clause seems to be floating and unrelated to the otherwise prevailing Lemon test).
Confused? As the opinions in Elmbrook School District suggest, the current jurisprudence can lead to a lot of disagreement-not only about the application of those holdings, but the meaning of the actual holdings themselves. You have to wonder whether the judges in the majority were begging the Supreme Court to clean up this mess when the majority opinion said, point blank:
The determination is case-specific: whether a particular practice violates the Establishment Clause is “in large part a legal question to be answered on the basis of judicial interpretation of social facts” which “must be judged in their unique circumstances.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000).
Similarly, several dissenters directed their critiques at the Supreme Court. Judge Ripple stated that the majority’s opinion completely altered the “coercion” test: it shifted the focus from the whether the government engaged in and pressured individuals into participation in religious activities to an analysis of non-religious government activities occurring in admittedly religious settings. According to Judge Ripple, this is an inappropriate application of the Lee and Sante Fe cases because it failed to account for the nature of the activities occurring during the graduation ceremony:
The graduation ceremony was completely devoid of references to religion, to the church that rented the space or to any other church. There was no prayer, no religious speaker. No member of the clergy, from the landlord church or from any other congregation, participated in the ceremony or was present on the dais.
And this switch by the majority is very dangerous for Judge Ripple because civil-religious proximity does and should not equal coercion or endorsement. Exposure does not result in endorsement or coercion in the American regime. To suggest otherwise is to radically alter the place of religion in our constitutional framework. For Judge Ripple, the application of the endorsement and coercion tests, as understood by the majority, is a judicial discretion disaster with far-reaching consequences that the Supreme Court must fix now.
Not to be outdone by his colleague, Judge Easterbrook accused the Supreme Court’s doctrine as being “unconstitutionally vague” because it is “hopelessly open-ended” and has been “made up by the Justices during recent decades.” Ouch. Judge Easterbrook basically wants to start over. And in perhaps the most common sensical passage of any of the opinions, when criticizing the endorsement test, he asks:
Suppose instead that the School District had rented a movie theater, full of posters for current and future attractions. Would this have endorsed movies or coerced anyone to buy tickets? Of course not. Thus if, as many decisions hold, the government is entitled to be neutral between religion and non-religion, e.g., Employment Division v. Smith, 494 U.S. 872 (1990), there is no basis for distinguishing Elmbrook Church from the United Center, the Hilton Milwaukee City Center, or the Palace Theater. Neutrality requires the state to treat religious beliefs and symbols the same as secular beliefs and symbols, not to disfavor religion.
Finally, Judge Posner added the icing to the please-grant-certiorari-cake when he writes:
The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance. See, e.g., Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late night horror movie” that can’t be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart”).
All of this may lead one to ask several questions: why does the current state of Establishment Clause precedent seem to provide a lot of tools, a ton of discretion, but no easy answers? After all, don’t we all know religion, religious activities, and religious experiences when we see them? And don’t we certainly intuitively know what “Establishment” would look and feel like? But why can’t we (and by that I mean some of the brightest minds throughout our constitutional history) describe and define it? Admittedly, the meaning of the Religion Clauses is hard. But do these questions themselves argue for less judicial involvement? It will be very interesting to see whether this case, coupled with the budding decisions regarding the HHS mandate, dramatically redefine (hopefully more clearly) the Court’s analytical approach to the interaction of government and religion in our constitutional system.
The Party of Inclusion
A little more than twenty years ago, the Democratic Party was a very different place. About to nominate a relatively unknown Governor from Arkansas, who considered himself a center-right Democrat, the party was divided. A huge reason for that division was the issue of abortion and whether to include it in the Democratic Party’s platform in 1992. Not a staunch public supporter at the time, Governor Clinton was quoted as saying the practice should be “safe, legal, and rare.” Pro-choice Democrats refused to let the pro-life Democratic Governor Robert Casey speak at the convention. The tide was shifting and it was headed in the pro-choice wing’s direction. Much like today and the issue of marriage equality, the party was divided and risked losing supporters.
On the twentieth anniversary of that convention, I discovered a document co-authored and signed by several pro-life Democrats at the time, including Governor Casey, Professor Robert George, Sargent Shriver, medical ethicists and doctors, and other law professors. The language in the document is incredible when compared to the typical pro-life/pro-choice debates echoed on modern cable television and in political campaigns. In fact, it made me wonder whether a similar document may exist twenty years from now on the issue of marriage equality.
Regardless of one’s political position on either issue, it is undeniable that the text of “A New American Compact” injects much-needed rationality into the public policy debate surrounding the most pressing moral issue then and now. It is a remarkable presentation of the pro-life cause within the context of the American values of equality and “inclusion”–two values that today’s Democratic Party claims to hold dear to its heart. Sadly, the hopes of the authors-with respect to new, innovative, and out-of-the-box public policies (that are both pro-woman and pro-child) and the creation of a national dialogue about the issue itself-did not come true. We can only wonder whether this forgotten document foreshadows the foreclosure of another public debate about the issue of marriage equality, thereby resulting in both political parties becoming stubbornly entrenched and convinced of the righteousness of their own positions on the issue.
When Roberts Met Marshall: The Chief Justice’s Marbury Moment
It has been more than a month since the Supreme Court handed down its decision deciding the fate of the Patient Protection and Affordable Care Act, colloquially known as “ObamaCare.” The reaction by pundits was quick and immediate. In some cases, it was too swift. Many conservatives, predisposed to the Republican Party’s agenda, quickly denounced Chief Justice Roberts as a turncoat. One popular conclusion was that the Chief Justice made a political calculation when casting the deciding vote in order to be on the “right” side of history (which undeniably seems to make little sense considering he voted with the four so-called “liberal” justices on the Court). There were many explanations coming from different extremes. All shared similar confidence in their assertions; yet few accounted for the complexity that came with the Court’s decision and Chief Justice Roberts’ majority opinion.
The opinion is probably right along constitutional grounds. The Court correctly responded to the unprecedented argument put forward by the government with respect to the Commerce Clause, and the reasoning saving the mandate as a “tax” is consistent with both precedent and common sense. As one scholar pointed out, if it walks like a duck, talks like a duck, looks like a duck, and quacks like a duck, it probably is a duck. The same holds true for a tax. Given that Congress does not always invoke the specific authority when acting, this reasoning seems correct from the point of view of the Court’s precedent. Further, and perhaps unintentionally, the decision managed to preserve the integrity of the Court in the heat of a vicious presidential election. Finally, as a matter of legal history, it must be acknowledged that Chief Justice Roberts’ majority opinion is a work of institutional genius.
When I first saw the news coverage following the opinion, and after reading the opinion myself, I could not help thinking about what I learned in my first-year constitutional law course while studying Marbury v. Madison. Shockingly, very few, if any, have mentioned the Court’s decision in the context of this crucial moment in early American legal history. In perhaps the most famous Supreme Court decision ever, Chief Justice John Marshall managed to expand the institutional authority of the Supreme Court while providing a victory to another branch of government that many considered to be his (and the Court’s) institutional and political enemy. For those lacking in SCOTUS history courses, Marshall (appointed by Federalist President John Adams) saw an opportunity to expand judicial power for generations by striking down a law [the Judiciary Act of 1789] that expanded judicial power of jurisdiction (seemingly a favorable development for the Court), all while giving a ruling favorable to the Jefferson Administration (the Democratic-Republican party that defeated the Federalists in the previous election). Chief Justice Marshall gave the Court the power of judicial review while reviewing and deciding a case in favor of his political opponent.
Modest Commentary 