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Michael McConnell on "an Establishment of Religion"
Michael Ramsey

At Volokh Conspiracy, Michael McConnell (Stanford) has a long guest post on the Maryland cross case (American Legion v. American Humanist Association) and the meaning of an Establishment of Religion: "Cleaning Up the Lemon Mess". From the core of the argument: 

... [T]he amicus brief I filed on behalf of the Becket Fund ... argues that the Court should adopt a historical approach. Under this approach, the question is not whether the government is "endorsing," "coercing," or "proselytizing" in matters of religion. The question is whether the government's actions share the characteristics of "an establishment of religion" at the time of the founding. After yesterday's argument, I'm more convinced than ever that a historical approach offers the best way out of the Lemon mess.

Under a historical approach, the first question is what constituted "an establishment of religion" at the time of the founding. This is not a difficult question to answer, as nine of the thirteen colonies had an establishment. These establishments shared six characteristics: (1) government control over the doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions. In applying this approach, the burden of proof is not on the government to show that the First Congress or the colonies engaged in the exact same practice. Rather, the burden is on the plaintiffs to show that the government's conduct shares the historic characteristics of an establishment.

The historical test includes coercion, because so much of the historic establishment of religion was coercive. But it is far more textured than merely a coercion test. It includes government action that favors one religion over another, that involves the government in doctrinal or ecclesiological issues, that invests religious bodies with political power, and much more. In short, an historical approach is bounded and objectively administrable, but not as narrow as "coercion" or as subjective as "endorsement."

... This approach yields a clear result in the Maryland Peace Cross case: displaying the cross is constitutional. The government is not controlling religious doctrine, compelling religious observance, sending money to a religious organization, or punishing dissenting worship. It is simply using a religious symbol to memorialize fallen soldiers—a practice that is consistent with the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch v. Donnelly, 465 U.S. 668, 674 (1984).

Our founders made every attempt to be religiously inclusive (within the demographic range of the day), but they did not regard the use of religious terminology or religious symbolism in the ordinary course of civic events as presenting an "establishment" issue. For example, a committee including Benjamin Franklin and Thomas Jefferson, tasked with designing a national seal, proposed an image of Moses and the Israelites crossing the Red Sea with the words "Rebellion to Tyrants Is Obedience to God." The national motto, the national anthem, and even the words with which Supreme Court hearings are begun contain religious references. Use of a cross to memorialize the war dead is not much different.

That sounds right, from an originalist perspective, with these amplifications:  The founding generation probably had a definite idea of what constituted an establishment.  "Establishment of religion" does not seem like one of those phrases that arguably could be intended as an open-ended, evolutionary concept, or a general principle that could mean many things to many people (even assuming that there are such phrases elsewhere in the Constitution).  If that's so, there seems a strong argument for using the founding generation's definite meaning.  Otherwise, it's hard to see what the Court is doing as anything other than rewriting the Constitution.  The fact that "establishment of religion" does not have an obvious meaning today, apart from whatever its constitutional meaning is, shouldn't change the fact (if it is a fact) that the framers had a definite meaning.  And if that definite meaning did not include putting up memorial crosses, should that not be an end to the matter (precedent aside, of course), in the same way that the Constitution's definite statement that each state shall have two senators resolves the number of senators a state may have?

Of course, this depends on Professor McConnell being right about the clause's definite meaning.

(And, I can't help adding, shouldn't we be talking about the framers of the Fourteenth Amendment, as this is a claimed limitation on a local activity?  Originalism really needs a theory about what to do in this situation.)