This week, the en banc Sixth Circuit will hear Bormuth v. County of Jackson. The case illustrates how broken establishment-clause jurisprudence has long been. But as Becket and Stanford Law School professor Michael McConnell argue in our amicus brief, it’s also a great case for recognizing that the fix is now at hand. And it may well open up an avenue for the Supreme Court to ensure the fix is final.
Readers of Bench Memos well know that the Supreme Court broke the establishment clause about 45 years ago with its decision in Lemon v. Kurtzman. That decision exiled standard constitutional analysis and its focus on historical understanding, and replaced it with a vague, stitched-together purpose/endorsement/entanglement test. As Seventh Circuit judge Frank Easterbrook noted in a 2012 dissent, Lemon’s concoction was simply “made up by the Justices.” And judicial consensus quickly developed that the concoction was inherently unstable and impracticable, leaving courts — to quote now-Justice Gorsuch (who was himself quoting a Sixth Circuit opinion) — in “Establishment Clause purgatory.”
That purgatory has lasted for decades. Lemon became Justice Scalia’s infamous undying “ghoul in a late night horror movie,” toppling memorials to police officers, shuttering ministries to prisoners, and censoring historic landmarks. Impervious to repeated judicial attempts to ward it off, Lemon lurched on, outliving even Justice Scalia. Or so it appeared.
But a closer look at the Supreme Court’s 2014 decision in Town of Greece v. Galloway shows that Lemon is, at long last, dead. In 180-degree contrast to Lemon’s historical agnosticism and arbitrary line-drawing, Town of Greece set a new standard that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” In the post-Lemon era, Town of Greece directs that “any test” under the establishment clause must acknowledge history. As Justice Alito elaborated in concurrence, if there is any daylight between a judicial test and historical practice, that “calls into question the validity of the test, not the historic practice.”
In a 2015 concurrence, Sixth Circuit Judge Alice Batchelder correctly recognized Town of Greece as a “major doctrinal shift” that worked “a sea change in constitutional law.” While the change is dramatic, it isn’t unheralded. Actions speak louder than words, and the writing on the wall here was that the Supreme Court last applied Lemon to determine the merits of an establishment-clause claim in 2005. By contrast, both of its establishment-clause decisions in the last five years — Hosanna-Tabor and Town of Greece — relied explicitly and heavily on history to guide the Court’s interpretation of the clause.
And it’s not like courts cannot figure out what the establishment clause means. Earlier this year, in fact, Tenth Circuit judges Paul Kelly and Timothy Tymkovich drew on Town of Greece and Professor McConnell’s historical research to identify six “general features” of an historical establishment of religion: “‘(1) [state] control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.’” State action that presents these features will normally violate the establishment clause, and if they are absent, the state action will not constitute an impermissible establishment.
But the lower courts still feel haunted by Lemon. Which brings us back to the Sixth Circuit, where the Bormuth case essentially centers on Lemon’s hopelessly sloppy endorsement prong. The pagan animist plaintiff, Peter Bormuth, claims that the county commission’s prayer habits (and a few unkind words) made him feel so unwelcome that he was unconstitutionally intimidated from participating in county meetings. His primary complaint was not with prayers, but with who prayed them: the legislators themselves, not chaplains or visiting ministers, both of which the Supreme Court has already said are okay.
The now-vacated (and sharply split) panel opinion agreed with Bormuth. Never mind that he appears to have quickly gotten over the alleged intimidation: his personal webpage lists several videos of him confidently speaking to the county commission since he filed his lawsuit, including to wish the commissioners a happy Solstice and to address the female commissioners specifically about the dangers of breast cancer. Nor did it matter to the panel that Bormuth has a history of firing off federal lawsuits. His past cases include claims of religious discrimination against a community college (for a poetry reading where a Christian woman allegedly read before he could), the Michigan secretary of state (for allegedly conspiring with the state Democrat party to rig a primary in favor of a Christian minister), and a private nonprofit nature preserve (for denying him access to the park after he threatened to violently hex park staff).
So what happened? As Judge Griffin’s dissent persuasively explained, the panel majority got stuck on Lemon. Which is surprising, since not only is Town of Greece directly on point as a legislative-prayer case, but Justice Alito’s concurring opinion also pointed to a nearby Michigan county and city’s practice of legislator-led prayer as both constitutionally innocuous and rather common. More importantly, Town of Greece required historical analysis for all future establishment-clause cases. Yet the panel struck down a legislative-prayer practice without a jot or tittle of history. Instead, it turned entirely on what was effectively Lemon’s endorsement prong.
Notably, the en banc Sixth Circuit’s decision to vacate the panel opinion augurs well. But the en banc Fourth Circuit is also considering a similar legislative-prayer case and it appears ready to continue following Lemon. So the Supreme Court may soon need to intervene to clarify that Lemon is really and truly dead.
In any event, the time is now at hand for courts to exorcise Lemon’s ghost and follow Town of Greece’s command to treat historical analysis as the touchstone of establishment-clause analysis.
– Daniel Blomberg is legal counsel at Becket.