How Will the Roberts Court Interpret the Establishment Clause?
The Consequences of a Shift Away from Justice O'Connor's "Endorsement" Test for Government-Sponsored Displays of Religious Messages and Symbols

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, Oct. 27, 2006

How will the new Roberts Court evaluate government-sponsored religious messages and displays that are challenged as violations of the Establishment Clause? Although the issue probably won't be prominent this Term, it is an important one, and the Court will doubtless confront it soon.

In this two-part series of columns, we highlight some of the issues that will arise for the Roberts Court when it addresses this type of case.

How Justice O'Connor's Test Previously Controlled Religious Display Jurisprudence

As readers will recall, Justice Samuel Alito replaced departing Justice Sandra Day O'Connor. While on the Court, O'Connor famously pioneered an important Establishment Clause test - the so-called "endorsement" test. And while she was on the Court, this test typically governed cases involving government displays of religious messages and symbols. The well-publicized Ten Commandments cases, decided a year and a half ago, were, however, an exception.

The endorsement test was grounded on this principle: the government's endorsement of religion through its sponsorship of a religious display sends a message to non-adherents that they are outsiders, not full members of the political community and an accompanying message to adherents that they are insiders, favored members of the political community. Therefore, such endorsements of religion are unconstitutional under the Establishment Clause.

Now that Justice Alito has taken Justice O'Connor's seat on the Court, most commentators think that the law in this area will change. One commonly discussed possibility is that the court will shift from an endorsement test to a "coercion" test. A coercion test would focus on whether

the challenged government action in some way compels any person to participate in religious practices or activities?

The endorsement test surely had its problems. It was unpredictable in its application, and it provided only limited guidance to lower courts or state actors struggling to implement it. But we feel it captured something that a coercion test ignores - the effect of government action on a religious group's status in the community.

In other words, Justice O'Connor's endorsement test took account of what we would call religious equality interests - the interests of adherents in having the state recognize that their religious beliefs are equally worthy of respect as the beliefs of other faiths - as opposed to the state favoring some religious communities while disfavoring the beliefs of others. In contrast, a coercion test invokes religious interests that sound exclusively in liberty, not equality. Its concern is not about the state's own messages promoting religion, but about what religious activities the state is forcing private individuals to participate in or to espouse.

What Does Coercion Mean? Why Justice Kennedy May Hold the Key

If the Roberts Court does shift from an endorsement focus to a coercion test, that leads to several questions. First, precisely what kind of a coercion test is it going to adopt? A lot will depend on Justice Kennedy's position in these cases - and despite his fairly long tenure on the Court, Kennedy's perspective is not entirely clear. How Justice Kennedy clarifies and applies his own views going forward may define the new Court's analysis in this Establishment Clause area.

Two key cases do provide some guidance as to Kennedy's views, however. In particular, they show that Justices Kennedy and Scalia differ on what constitutes "coercion" in this context.

First, in 1992, in Lee v. Weisman, the Court, in an opinion written by Justice Kennedy, held 5-4 that it was an Establishment Clause violation for a public school to include clergymembers' prayers in its official graduation ceremony. Justice O'Connor was also in the majority. But Justice Scalia, along with Justice Thomas, then-Chief Justice Rehnquist, and then-Justice White, dissented.

Second, in 2000, in Sante Fe School District v. Doe, the Court held, 6-3, that it was an Establishment Clause violation for a public high school to have an election to decide whether to choose a "student council chaplain" who would deliver a prayer over the P.A. system before home varsity football games, and who to elect to serve in this role. This time, Justice Stevens wrote the majority opinion, in which Justices Kennedy and O'Connor joined. Again, Justices Scalia and Thomas and then-Chief Justice Rehnquist, dissented.

Justice Scalia's dissents in these cases have made clear that he thinks prayers at school graduation ceremonies are not coercive because students are formally free not to participate in these religious exercises. Justice Kennedy, in contrast, has shown by his opinion in Lee, and his decision to join the majority in Santa Fe, that he is more willing to recognize that indirect pressure, and burdens short of legal sanction, can be coercive, and necessarily raise Establishment clause concerns. But will Justice Kennedy continue to hold this position as his vote becomes more critical in future cases?

Will Kennedy See Coercion in Prayers and Government Displays Directed Not to Schoolchildren, but to Adults?

Also, will Justice Kennedy extend his coercion analysis beyond the school prayer setting - for instance, to cases of government-sponsored prayer addressed almost exclusively to adults?

For example, we think there are credible arguments that government-sponsored prayer before City Council and School Board meetings is unconstitutional. Granted, in 1983, in Marsh v. Chambers, the Supreme Court, 6-3, determined that "legislative prayer" - that is, the practice of federal and state legislatures of paying a chaplain to open their sessions with prayer - was constitutional. But City Councils and School Boards serve administrative, as well as legislative, functions. And even their legislative decisions are often narrow in scope, and primarily impact small groups or a few individuals.

In part because they serve, and their decisions often involve, a relatively small constituency, these decisionmaking bodies commonly receive public input during their meetings, before they deliberate and act. In that circumstance, any citizen or petitioner who plans to address the council to influence its decision may feel coerced to participate in a public prayer that opens the council session. Would Justice Kennedy recognize coercion in this context? Or would he find it pertinent that the members of the audience are adults, whose religious decisions may be less susceptible to state influence than those of schoolchildren?

It is also unclear whether Justice Kennedy believes that passive religious displays - as opposed to speeches delivered to relatively captive audiences who must listen if they are to attend a graduation or football game -- can ever be coercive. We do know from his writings that he would uphold many religious displays - as non-coercive - that would fail an endorsement test. The open question, however, is where he would draw the line.

In 1989, in Allegheny County v ACLU, Kennedy wrote in a dissenting opinion criticizing the endorsement test that the even under a coercion test, the Establishment Clause "forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall . . . [b]ecause such an obtrusive year round display would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion."

Yet Justice Kennedy joined (without comment) the majority that upheld the Ten Commandments monument in the 2005 Van Orden v. Perry case - notwithstanding the fact that the case involved a permanent display on the Texas statehouse grounds.

Would Justice Kennedy hold, for example, that a large, permanent, Latin cross on the Texas statehouse grounds violated the Establishment Clause? We don't know. And Justice Kennedy did nothing to explain his votes in the Ten Commandments cases.

How Will the Court Apply the Coercion Test When Questions of Equality Arise?

Finally, how will the coercion test - if the Court indeed adopts some version of it -- deal with questions about religious inequality and preferential treatment?

Here, it is not just Justice Kennedy's position that is unclear; Justice Scalia's writings are also ambiguous. Last year, in his dissent from the McCreary County v. ACLU decision - ruling unconstitutional the placing of the Ten Commandments in a county courthouse display -- Scalia argued that the Establishment Clause principle that the government cannot favor one religion over another should not be applied to public acknowledgments of the creator.

According to Justice Scalia, government may overtly favor monotheistic beliefs. He argues not only that acknowledgments of a single creator are constitutional, but also that monotheistic religious beliefs, such as the Ten Commandments, that are recognized across a broad and diverse range of the population - from Christians to Muslims - cannot be understood as government endorsement of a particular faith, and, accordingly, do not violate the Establishment Clause.

We are genuinely unsure as to how to assess Justice Scalia's argument. We understand that he would permit, as constitutional, non-denominational government acknowledgments of G-d. But is he also saying that public acknowledgment of more denominational or sectarian beliefs would be unconstitutional? We find that difficult to believe, given his past support of the government's display of even sectarian symbols.

Perhaps Justice Scalia is suggesting that government can communicate various religious messages - but, aside from a generic preference for monotheistic beliefs, it cannot favor the message of one faith over others. Given the diversity of even monotheistic faiths in our society, however, how exactly is that principle going to be implemented?

Many difficult questions will arise - questions that may entangle government in interpreting, valuing, and choosing among religious beliefs: How many other religious messages from diverse religious constituencies must the state acknowledge, once it acknowledges one denominational message? And who decides what the message of a particular faith community will be? And what constitutes favoritism? Must all displays be of the same size and placed in equally prominent locations? Or may the displays of smaller faiths be limited in magnitude and placed in secondary locations? At what point does government discretion on these issues become subject to judicial review?

Justice Kennedy suggested in his dissent in Allegheny County that it might be unconstitutional if a city chose to recognize, through religious displays, every significant Christian holiday while ignoring the holidays of all other faiths. Would less overwhelming examples of favoritism invoke careful judicial scrutiny under Justice Scalia's standard? We don't know.

Whatever Justice Scalia may be thinking on this issue, however, we don't think there is any doubt that if the Court moves away from the endorsement test, it is going to have to confront the issue of whether it is constitutional for a state to decide to display one religious message, but not others. Thus, in future cases, the issue may not be whether government can say "yes" when it is asked to sponsor a religious display - but rather, whether it can say "no" to one faith's request after it has already agreed to sponsor a display from a different faith.

In part two of this series, we will discuss some of the lower court cases confronting this quandary, and analyze further how the leading Establishment Clause thinkers on the Supreme Court may see things.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Alan Brownstein is a Professor of Law at UC-Davis School of Law.

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