In this podcast, we discuss several recent law and religion controversies concerning the “Satanic Temple.” We discuss what the Satanic Temple is and what its adherents say they believe, whether the Temple should count as a religion or a religious institution for legal purposes, and how the Temple has cleverly put pressure–legally and otherwise–on the principles of sincerity, neutrality, and equality that are said to animate the constitutional doctrine of religious freedom. Listen in!
I have a piece at the Liberty Fund blog responding to Professor Jesse Merriam, a political theorist of legal conservatism, concerning the prospects and obstacles for a new legal conservative fusionism (historically, “fusion” was the term used to describe the coming together of libertarian and traditionalist streams of thought in post-War American politics, as described by Frank Meyer, Brent Bozell, and others). Some of the piece is diagnostic, but there is an extended section offering a few sketches on various constructive possibilities.
It was a ceremony that made [Tocqueville and Beaumont] want to smile. The trade associations and the militia marched past with an entirely spontaneous gravity and order, then the procession surged into a church where everyone sang verses to the tune of the Marseillaise accompanied by a single flute. The speech made by a lawyer foundered in rhetorical commonplaces. But the reading of the Declaration of Independence gave rise to a unanimous feeling that Tocqueville describes in the following way: “It was as though an electric current moved through the hearts of everyone there. It was in no way a theatrical performance. In this reading of the promises of independence that have been kept so well, in this turning of an entire nation toward the memories of its birth, in this union of the present generation with one that is no longer and with which, for a moment, it shared all those generous feelings, there was something profoundly felt and truly great.”From Andre Jardin, Tocqueville: A Biography (Lydia Davis trans. 1988)
I have an essay about the Bladensburg Cross case at Public Discourse, where I isolate the holding (and wonder about whether there is actually a broader holding in the case), discuss the case’s implications for future religious displays, and speculate about the dynamics on the Supreme Court and elsewhere respecting these issues. A bit:
“The holding of American Legion lays out what could be called a jurisprudence of old religious monuments, symbols, and practices. When a religious monument, symbol, or practice, is old—whether it is a cross or a Ten Commandments monument or some other government practice of long standing—it is especially likely to be imbued with many purposes and messages that have changed and developed with time. Communities are entitled to maintain these religious monuments, symbols, and practices as part of their historical and cultural heritage, and the Court will no longer “roam the land, tearing down monuments with religious symbolism and scrubbing away an reference to the divine.” “The passage of time,” the majority said, “gives rise to a strong presumption of constitutionality,” and the Cross in this case clearly enjoys that presumption. It is both a Christian symbol and a symbol of war and patriotism. It is these things together.
Already, this holding works a considerable change in Supreme Court doctrine. It surrounds “old” religious “monuments, symbols, and practices” with a protective shield against judicial mischief in the name of the Establishment Clause. New religious monuments, symbols, and practices whose purposes are manifestly discriminatory, it is true, are not covered by the holding (more on this below), and the terms “new” and “old” are not defined. But the Court’s existing approach to state-sponsored religious displays is quite different. The much-reviled test in Lemon v. Kurtzman (1971) focuses on “the” purpose—“religious” or “secular”—of a display, as well as its “primary effect,” which the Court has subsequently interpreted in this context to mean whether a “reasonable observer” would perceive that the government is “endorsing” religion by displaying a monument or symbol. While Justice Kagan believed that the cross also survived under this approach, none of the other justices in the majority accepted Lemon, and all justices in the majority held that “old” displays have neither single purposes nor single meanings. This is flatly incompatible with the assumptions of Lemon.
There is overwhelming support on the Court for what would have been a broader holding. In Part II(A) of Justice Alito’s opinion, a four-justice plurality rejected the Lemon test and its “endorsement” application for these types of religious displays. It was something of a surprise that Justice Breyer joined the plurality. But it was a real shock that this part of Alito’s opinion was not officially joined by Justice Thomas or Justice Gorsuch. Those two justices authored respective concurrences in the judgment, which technically means that while they agree with the outcome, they do not join the Alito opinion’s reasoning. But both of them would have gone further than the plurality and rejected the Lemon test in its entirety. That they did not join Part II(A) rejecting the Lemon test—at least with regard to “old” displays—is baffling. For those who were hoping that something clearer would emerge from this case, it’s also rather exasperating.
Justice Thomas, in fact, goes so far as to say this about the Lemon/endorsement test: “the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of the opinion” (emphasis added). With Thomas, the reasoning in Part II(A) therefore has the explicit support of five justices. But because Thomas did not formally join Part II(A), the statement seems to be dicta, material in an opinion unnecessary to the judgment. Admittedly, the line between dicta and holding is not crystal clear, and the statement could even be read as an alternative holding. Justice Gorsuch’s concurrence in the judgment also has highly critical comments about Lemon, but Justice Thomas’s statement is a clear and explicit affirmation of the plurality’s position.
At any rate, the lesson of American Legion seems to be that the Lemon/endorsement test is rejected—at least for “old” religious monuments, symbols, and practices.”
The Maryland Bladensburg Cross was allowed to stand. That’s the easy part. The hard part is what precisely prevented the Court–for the second time in as many Establishment Clause cases involving these kinds of issues (see also Town of Greece)–from cobbling together a majority opinion repudiating Lemon/endorsement and offering a new approach, even one limited to religious displays. Instead, we got:
- a plurality opinion (joined by Justice Breyer) with lots of extremely critical commentary about Lemon/endorsement, but that does not overrule Lemon/endorsement even in this narrow area;
- one concurrence that would have overruled Lemon/endorsement;
- one concurrence that preserves Lemon/endorsement;
- 4-6 votes for a history and tradition approach whose contours vary significantly depending on the justice;
- two opinions concurring in the judgment that would have overruled Lemon/endorsement;
- a dissent by Justice Ginsburg joined by Justice Sotomayor.
The puzzle: what prevented a majority from overruling Lemon/endorsement even in this specific area? Does Lemon/endorsement continue to apply in this area where the display is new and/or there is (lots of?) evidence of discriminatory motive? I find it difficult to understand how the extremely critical comments about Lemon/endorsement that four justices put their name to in the plurality, plus the views of another two justices that were ready to overrule Lemon/endorsement altogether, do not add up to some kind of actual overruling. Justice Kagan could certainly have written a concurrence in the judgment. Not to be, I’m afraid. Still, I’ll have more to say about the 4-6 votes for some variety or other of a history/tradition approach soon.
I am quoted in this CNBC story on the Bladensburg Cross case up for oral argument next week. The author, Tucker Higgins, put together a nice piece (one tiny quibble: Town of Greece v. Galloway was not decided on the basis of the coercion approach…that part of the opinion did not command a majority) and was good enough to reference and link to this article of mine on religion and the Roberts Court from a few years ago.
“[T]here is an ambiguity in the book’s subtitle. “The man who made the Supreme Court” might signal Marshall’s outsized role in fashioning the Supreme Court in his own self-image. There are some biographies, as Kevin Walsh has noted in his review in these pages of another recent Marshall book, that read Marshall as a kind of Romantic hero—the American Werther or Cagliostro of the judiciary. But there is another, and perhaps better, interpretation of the subtitle: that distinctive features of Marshall’s character as a man subtly but powerfully influenced the Court’s development under his stewardship.”
At the First Things site today, I have a post on The American Legion v. American Humanist Association, the Maryland Peace Cross case, in which the Court granted cert last month. I argue that the Court could use the opportunity to get rid of the endorsement test in Establishment Clause cases. Here’s an excerpt:
Last month, the Supreme Court agreed to consider an important Establishment Clause case from Maryland, The American Legion v. American Humanist Association. The case, which presents a challenge to a Maryland cemetery’s use of a 40-foot cross as a public war memorial, gives the Court a chance to clarify its views on the constitutionality of state-sponsored religious displays. In particular, the case provides an opportunity for the Court to do away with the so-called “endorsement test,” which holds that a display violates the Constitution if a hypothetical, reasonable observer would see it as an endorsement of religion. Conservatives have criticized the endorsement test for decades, and with a new majority on the Court, they may finally have the votes to discard it. American Legion could turn out to be one of the most significant Establishment Clause cases in a long time.
American Legion is also the subject of a recent “Legal Spirits” episode Marc and I recorded. But you have already listened to that. Right?
At the Liberty Law site today, I have a post discussing the UK Supreme Court’s ruling this month in Lee v. Ashers Bakery, a wedding-vendor case from Belfast. The British case deals with several substantive issues that our own Supreme Court dodged earlier this year in Masterpiece Cakeshop. The British court’s president, Barbara Hale (left), wrote for a unanimous court:
Even though the issues do not line up exactly, Lady Hale’s opinion addresses many of the difficult questions that arise in the American context as well: whether denying services in connection with gay weddings is equivalent to denying services to gay persons; whether one should attribute certain kinds of commercial speech to the vendor or the customer; and whether the state’s interest in ending discrimination in public places overrides the religious convictions of persons who operate small businesses. The fight over these issues is still in its early stages, in Britain and America. This decision may provide guidance for the way forward.
Readers can find my post here.
I’m very pleased to be at The King’s College tomorrow in Manhattan, where I’ll be giving a response to Professor David Tubbs’s Constitution Day Lecture: “The Burdens of Constitutional Memory: Slavery, Segregation, and the Supreme Court.” The event is free though RSVP is requested. Hope to see any of the Center’s local readers and followers there!