Bench Memos

Law & the Courts

Cleaning Up the Establishment Clause Mess

A month ago, the Supreme Court granted two certiorari petitions that seek review of a Fourth Circuit ruling that illustrates the sorry mess of the Court’s existing Establishment Clause precedents. At its conference tomorrow, it should grant review of an Eleventh Circuit ruling that does likewise. Reviewing these rulings together will give the Court a real opportunity to begin setting things right.

Let’s start with the Fourth Circuit’s ruling in American Humanist Association v. Maryland-National Capital Park & Planning Commission. Applying the amply criticized (and awful) Lemon test—from the Court’s 1971 ruling in Lemon v. Kurtzman—a liberal Fourth Circuit majority ruled that the Establishment Clause requires removal or destruction of a 93-year-old memorial to American servicemen who died in World War I because that memorial is in the shape of a cross. Applying that same test, the very liberal Judge Roger Gregory, in dissent, ruled that the memorial does not violate the Establishment Clause.

It was twenty-five years ago, in one of his most colorful opinions, that Justice Scalia called for the Court to overrule Lemon:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under…. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart …,  and a sixth has joined an opinion doing so.

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts.” Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. [Citations omitted.]

The granted petitions give the Court the opportunity to bury Lemon permanently.

In Kondrat’yev v. City of Pensacola, an Eleventh Circuit panel ruled that a cross that has stood in a city park without controversy for over 75 years violates the Establishment Clause. The panel determined that circuit precedent, which two of three panel members declared to be wrong, required its ruling.

Law professor (and Establishment Clause expert) Michael McConnell and the Becket Fund for Religious Liberty have filed a certiorari petition on behalf of the city of Pensacola in Kondrat’yev. As they explain in their reply brief, hearing their case in tandem with the case from the Fourth Circuit would ensure that the Court is able to clear up the Establishment Clause mess. For starters, their case tees up the threshold issue of whether mere “offended observers” have standing to bring Establishment Clause challenges. Further, it presents a different and, they argue, “a more representative” set of facts on passive religious displays, so considering it along with the Fourth Circuit case would ensure that the Court provides useful guidance to the lower courts.