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12/27/2018

Originalist Amicus Brief in the Maryland Cross Litigation
Michael Ramsey

In the American Legion v. American Humanist Association litigation at the Supreme Court, this Brief of Amici Curiae Religious Denominations and other Religious Institutions Supporting Petitioners has important originalist arguments.  Here is the summary of argument:

I.  A plain reading of the text shows that the Establishment Clause erects a jurisdictional bar to laws “respecting an establishment of religion.” For the founding generation, personal and historical experience invested this phrase with specific meaning. It included, most obviously, an official declaration that a particular church or religion was the preferred faith. Also embraced in that term were governmental intrusion into matters of church doctrine, governance, or personnel; compulsory participation in the rites and ceremonies of the established church; penalties on worship in dissenting churches or laws treating believers in those religions differently from believers in the established church; restrictions on political participation by religious dissenters; public financial support for the established church; and authorization for the established church to perform government functions.

Each of these attributes of an established church was not only likely to intrude upon the individual religious exercise of those who did not believe in the established religion, it also put the non-established faith communities at a substantial disadvantage. Thus, by prohibiting any law “respecting an establishment of religion,” the First Amendment’s Framers were protecting not just individual freedom, but non-established faith communities.

II. Most of the past and currently proposed legal standards for applying the Establishment Clause either misunderstand or ignore the Clause’s text and history, and for that reason threaten religious freedom. That is true, for example, of the “coercion” test offered by petitioner American Legion. To be sure, that test reaches the correct result here. But in some circumstances, adoption of that test would undermine the very freedom for religious institutions that the Clause was designed (in part) to protect: A statute authorizing a judge or other official to analyze religious texts to determine “the true Anglican doctrine” on a particular issue would be a flat violation of the Establishment Clause, even if the official’s conclusion triggered no government compulsion. See, e.g., Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion by Thomas, J.) (“It is well established *** that courts should refrain from trolling through a person’s or institution’s religious beliefs.”).

The American Legion is also mistaken in suggesting that the framework articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), should be thrown out entirely. Some aspects of that framework—specifically, parts of its “entanglement” analysis—are compelled by the Establishment Clause’s text and history and help protect the autonomy of religious institutions.

The American Legion is correct, however, in criticizing open-ended or subjective legal standards—such as the “endorsement” test and the generalized “purpose” and “effect” prongs of the Lemon test—as well as the plurality opinion and controlling concurrence in Van Orden v. Perry, 545 U.S. 677 (2005). None of those provides a sound general test for resolving Establishment Clause controversies, and none is consistent with the Clause’s text and history.

III. The proper test is suggested in this Court’s unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), and the majority opinion in Town of Greece v. Galloway, 572 U.S. 565 (2014). Both decisions indicate that the meaning of the phrase “respecting an establishment of religion” should be discerned by looking to historical practices and understandings at or near the founding period.

Thus, unless long-standing precedent already speaks definitively and consistently on a specific issue, see, e.g., Engel v. Vitale, 370 U.S. 421 (1962) (state composed public school prayer), application of the Establishment Clause should be driven by its text and what the founding generation understood it to mean. Specifically: A government action should be sustained against an Establishment Clause challenge unless history confirms that the founding generation understood such an action as an establishment of religion outright—such as the official formation of a national church—or as a legal attribute of a religious establishment—such as a law intruding into a church’s ecclesiastical affairs.

Applying this test, Maryland’s maintenance of the Bladensburg Cross does not remotely violate the Establishment Clause. Maintaining a nearly century-old war memorial at a busy intersection is hardly an official declaration in law that Christianity is the government’s preferred religion. And the small financial cost of its maintenance—for the benefit of an organization that is not even a church—is a far cry from the public support for established churches during and preceding the founding era.

(Thanks to James Phillips for the pointer).