The Roberts Court and the Establishment Clause, Part Two: The Consequences of the Probable Shift from An "Endorsement" to a "Coercion" Test

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, Nov. 10, 2006

In our last column, we wrote about how the Court's Establishment Clause jurisprudence might change now that Justice Alito has replaced Justice O'Connor on the Court.

We noted that the Court may shift from an endorsement test (the test Justice O'Connor favored) to a coercion test. (For more background on these different approaches, readers can consult our previous column.)

We also noted that if the Court does make this shift, it will have to decide how to deal with the equality questions that arise when the Court is asked to review state decisions to sponsor the religious message of one faith, while refusing to sponsor the messages of other faiths.

In this column, we will further delve into how, exactly, the Court may grapple with these questions.

The Inversion of Arguments in Establishment Clause Cases - Plaintiff Challengers Will Allege that Religious Displays are Private, Rather than Public

It is difficult to predict exactly how the Court will handle this problem, which has not been explored much even by the lower courts. Typically, when a religious display is challenged under the approach that has dominated until now -- the endorsement test - the plaintiffs want the challenged religious display removed. Period!

Plaintiffs in such cases have not generally argued that messages of other faiths should be added to make the display constitutional - indeed, inclusion of more religious messages could in many instances increase rather than ameliorate the impermissible endorsement.

But the nature of plaintiffs' constitutional challenges to religious displays may change now - along with the Court's shift away from the endorsement test.

Consider in this regard Summum v. City of Ogden. The case arose because the city of Ogden, Utah, allowed the Fraternal Order of the Eagles to place a Ten Commandments monument on the lawn of its municipal building, while simultaneously refusing to permit the followers of the Summum faith (a relatively new religion formed in 1975) to install a comparable monument, proclaiming the tenets of their religion, in a similar location.

The Tenth Circuit held that the city had thereby violated the Free Speech Clause - not either of the Religion Clauses -- of the First Amendment.

The free speech rather than religion clause disposition of the case was the product of the way the arguments presented turned the traditional litigation posture of the parties in typical religious display cases upside down. In most religious display disputes, the plaintiffs argue that the display at issue is sponsored or subsidized by the government and, as such, it unconstitutionally promotes or endorses religion. In response, the state defendant generally argues that the religious message - far from being under the government's aegis -- is actually private expression, for which the site of the monument is simply a forum. And private expression, the government argues, cannot violate the Establishment Clause

In Summum, however, these positions flipped. The city of Ogden argued that the Ten Commandments monument did, in fact, express the government's message - and pointed out that the government has a right to speak on its own behalf. Conversely, plaintiffs insisted - and the Tenth Circuit agreed -- that the monument was private speech in a non-public forum, and that access to such a forum could not be limited by viewpoint-discriminatory restrictions (here, restrictions that favored just one religious perspective over others).

If the Supreme Court's Establishment Clause doctrine moves away from the endorsement test as we speculate, and thus becomes more permissive of government-sponsored religious displays than it has been in the past, it would not surprise us to see this transformation of roles occurring with increased frequency.

If plaintiffs cannot convince a court that a religious display on public property constitutes impermissible religious favoritism under the Establishment Clause (because the bar is set so high after the endorsement test is abandoned), they will argue the display is instead private speech in a non-public forum to which other religious displays must be provided access - as a matter of free speech clause doctrine - under principles of speech viewpoint neutrality.

The Equality Problem Exists Even if the Display is Deemed Government Speech

Even if a court concludes that the religious display at issue is sponsored by the state, this may not mean that the display will be upheld. As we suggested in our earlier column, there are still important open questions about how a coercion-based Establishment Clause standard - permissive as it may be -- will deal with religious favoritism.

According to the framework Justice Scalia proposed in McCreary (one of the Ten Commandments cases discussed in Part One of this series), the government may favor monotheistic beliefs that are recognized across such a broad and diverse range of the population that they cannot be understood as government endorsement of a particular faith.

But, aside from the Ten Commandments, what other scriptural references (as opposed to generic acknowledgments of G-d) are likely to satisfy Justice Scalia's requirement.?

More important, how exactly is the Court going to decide what constitutes such a common denominator among monotheistic faiths?

It is true that those monotheistic faiths that recognize Abraham as a significant religious figure -- Judaism, Christianity, and Islam -- share some common references. But allegedly common references may be deceiving. Language and accounts differ, as does the theological meaning assigned to scriptural language.

Justice Scalia's response to questions about the alleged common acceptance of the Ten Commandments in his McCreary writing was remarkably unhelpful. First, he conceded that a display of the Ten Commandments could constitute an impermissible endorsement of religion - if the government endorsed a particular version of the commandments as authoritative.

Yet he then went on to argue that the McCreary County government's decision to choose one version of the Ten Commandments for its courthouse display did not constitute an endorsement of one side in a theological dispute. Why not? Justice Scalia offered two reasons.

First, there was no endorsement in McCreary because the display included secular documents as well as the Ten Commandments - along with a plaque explaining that the Ten Commandments have profoundly influenced western legal thought. Thus, the content and context of the display dispel any suggestion of an endorsement of any disputed position.

Second, Scalia said "the sectarian dispute regarding text [of the Ten Commandments], if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not.)"

Leaving aside the obvious point, that Justice Scalia's first argument involves a variant of an endorsement test - a test that Scalia elsewhere flatly rejects - his first explanation's focus on context contributes nothing to the discussion of whether the religious message, as presented, is in fact commonly accepted by diverse faiths. Context could negate a message of endorsement of even an overtly sectarian display.

The second explanation is even more problematic. It suggests that the Court will decide, based on what - its own intuitions - whether religious differences are widely known enough to matter for constitutional purposes? This leads to the very odd inference that the understanding of those people who are the most serious about their faith, and the most knowledgeable about how it differs from other religions, will matter the least in establishment clause cases.

Consequences For Minority Faiths Under Justice Scalia's Approach

Perhaps most disturbing are the possible consequences for minority faiths if Justice Scalia's approach is adopted and applied expansively -- so that government may only sponsor the most generic of monotheistic beliefs or, if it chooses to promote more sectarian messages, it must attempt to do so in an evenhanded and inclusive way. Granted, that approach may result in some kind of state acknowledgment of most mainstream, and even some minor, faiths. But the message it will send to those faiths that are not included will be one of ostracism, if not contempt.

Consider the U.S. Court of Appeals for the Fourth Circuit's decision in Simpson v. Chesterfield County Board of Supervisors, an April 2005 case that we think is one of the worst church-state decisions we have ever read.

The case arose because the Chesterfield County, Virginia Board of Supervisors begins its evening sessions with a non-sectarian prayer. In order to decide who would offer these prayers, the Board asked its clerk to invite religious leaders to participate in this religious exercise - drawing them from a list of virtually every religious congregation in the county, some 235 faith communities in all. Religious leaders who responded to the invitation were selected to offer a prayer before the Board's meetings on a first-come, first-served basis.

A Wiccan asked to be included on the list. Her request was rejected because she was not part of the monotheistic traditions from which the Board elected to choose a prayer-giver. Remarkably, the Fourth Circuit upheld her exclusion, and saw nothing unconstitutional about the Board limiting its invitations to only leaders of monotheistic faiths.

But who decides whether Wiccans are monotheistic? And what of other faiths? There are serious disputes about whether Hinduism should be understood as polytheistic, or whether it is a monotheistic faith - with the understanding that the different deities being worshiped are really manifestations of but one G-d. Could Chesterfield County refuse to invite the leader of a Hindu temple in the county on the grounds that Hinduism does not satisfy its monotheistic criteria? Would that decision be reviewable on constitutional grounds?

Larger than these unresolved questions, the worst thing about the Simpson decision is the message it sends to excluded minorities. The Fourth Circuit panel in Simpson went so far as to actually praise the Chesterfield Board for its ecumenical spirit and its commitment to religious tolerance. It seemed to bother the court not at all that, when non-monotheistic religions were at issue, tolerance ended abruptly, and was replaced by total exclusion.

The panel explained that in Marsh v. Chambers, the Supreme Court case upholding the offering of prayers before Nebraska's state legislative sessions, the prayers were offered by a single Presbyterian minister, the legislature's chaplain. Surely, the Fourth Circuit panel argued, if it is constitutional to allow legislative prayers to be offered by a clergyman of one particular faith, then it must be constitutional for Chesterfield County to employ the much more inclusive system it has utilized.

The panel never addressed, presumably because it just did not see, the extraordinary difference between the messages communicated by the state in these two situations. In a religiously-diverse political community, it is one thing for the state to say that it is comfortable having a chaplain of one faith, a Presbyterian minister, selected to offer prayers to the state legislature. Whatever offense is experienced by all the non-Presbyterians in Nebraska by this act of denominational preference is at least shared by such a broad array of citizens that it is diluted considerably - to the point where it might arguably be tolerated.

In contrast, being told that every other religious congregation in the community, except your own, is eligible to offer a prayer before the County Board communicates a very different message - one of thinly-concealed marginalization and contempt.

How could any jurist fail to see that? Would anyone doubt that this was the message being communicated if, say, the only Jewish or Muslim congregation (rather than the Wiccans) in a county was similarly excluded from the list of those invited to offer public prayers?

Hostility to Minority Faiths Cannot Stand Under the Religion Clauses

Some judges and commentators who were critical of the endorsement test complained that, taken to its logical conclusion, it would exclude any reference to G-d from public discourse. That is how they defend their preference for the more permissive coercion test.

If decisions like the Fourth Circuit's opinion in the Chesterfield County case became the law of the land, however, one would have to wonder whether the critics' concern was truly preventing G-d from being pushed out of the public square - or whether they were primarily interested in preventing members of minority faiths from coming in from the cold.


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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