American Legion v. American Humanist Association. There’s something attractive in the names of the parties in the Supreme Court’s recent decision on church and state. Both organizations, the veterans’ group formed after World War I and the secular humanists’ group founded decades later, want to tell you how American they are.
And they are locked in the longstanding debate over the meaning of the first clause of the First Amendment to the United States Constitution. “Congress shall make no law respecting an establishment of religion,” it reads, “or prohibiting the free exercise thereof.”
Note that this is not, as many Americans think, a command that there be a solid wall between church and state. That metaphor was advanced by Thomas Jefferson in a private letter. He neither attended the Constitutional Convention nor voted for the First Amendment.
Rather, the First Amendment barred Congress from creating an established church, supported by taxation, like the Church of England. It also barred Congress from messing with the established church in any state. Connecticut and Massachusetts held on to established churches until 1818 and 1833, respectively.
This made sense in a new nation uniting what had long been culturally and religiously diverse colonies. As Justice Clarence Thomas noted in his concurring opinion in American Legion, this implies that this portion of the First Amendment cannot logically be applied to limit the states. Congress can make no law, but states can’t be barred from “exactly what the text of the Clause seeks to protect: state establishments of religion.”
The Supreme Court did not go quite that far in its case on whether the Bladensburg Cross, erected by Maryland citizens in 1925 to memorialize 49 residents killed in World War I and maintained since in a traffic circle by a state government agency, represents an unconstitutional establishment of religion. But seven justices agreed that it did not.
Justice Samuel Alito’s plurality opinion stressed that the Cross was old (the Humanist Association sued in 2012, 87 years after it was dedicated in a multi-faith ceremony), that its message was not solely religious (Americans were much taken with the rows of crosses in World War I military cemeteries) and became even less so over time. Its removal would be seen by many “not as a neutral act but as the manifestation of a hostility toward religion.”
What Justice Alito did not do was decide the case under the three-part test set forth in what was long taken as the leading Establishment Clause case, Lemon v. Kurtzman (1971). In that case, an 8-1 Supreme Court overturned Pennsylvania and Rhode Island laws providing state funding of nonreligious programs provided by religious, almost all Catholic, schools.
Lemon, he argued, has not proved to be a “framework” for deciding First Amendment cases, has frequently been sidestepped by the Court, and has not provided consistent guidance for trial judges. Its supposedly rigorous tests, especially its ban on “an excessive government entanglement with religion,” are in practice impressionistic. The same facts strike one judge as forbidden entanglement and another as peaceful coexistence. Such multipart tests, common in midcentury jurisprudence, were a tool for legal elites to foist their values on the public.
Concurring justices were even harsher. Justice Brett Kavanaugh notes that “this Court no longer applies the old test articulated in Lemon v. Kurtzman.” For Justice Neil Gorsuch, Lemon was “a misadventure,” which “sought a ‘grand unifying theory’ of the Establishment Clause but left us only a mess.”
“I would take the logical next step,” wrote Justice Thomas, “and overrule the Lemon test in all contexts.”
It seems that all the juice has been squeezed from this citrus, with just the rind left rotting in the garbage can.
Lemon and American Legion were decided in culturally different Americas. Lemon’s postwar America was a time of increasing religious allegiance and attendance, of significant cultural conformity. It was a time when judges and legal scholars were quick to detect and eager to prevent what they considered undue pressure on nonconformists and unbelievers.
Today’s America is one of declining religious allegiance and attendance, one in which media, university, corporate, and government elites stigmatize religious belief and expression. It’s an America where justices seek to prevent undue pressure on believers.
Lemon lawsuits are used to stifle First Amendment free exercise of religion just as university speech codes are used to stifle First Amendment freedom of speech, at the behest of those claiming to be offended. But, as Justice Gorsuch noted, the Court’s standing doctrine lets only those with concrete interests bring lawsuits. Feeling offended by an 87-year-old monument is not enough.
