Freethought Freethought Society of Greater Philadelphia v. Chester County: The Desirability of a De Minimis Exception to the Supreme Courts Establishment Clause Jurisprudence

• Author: Michael L. De Shazo
• Position: J.D./B.C.L. Candidate, May 2005, Paul M. Hebert Law Center, Louisiana State University
• Pages: 508-546

J.D./B.C.L. Candidate, May 2005, Paul M. Hebert Law Center, Louisiana State University. I would like to thank both Professor John Devlin and my senior editor, Chris Chauvin, for their invaluable assistance in refining my paper. I would also like to thank my parents for all of the hard work and sacrifice which has made my education possible. Finally, I would like to thank Michele for being a constant source of support and encouragement.

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In Freethought Society of Greater Philadelphia v. Chester County, the Third Circuit upheld the constitutionality of a display of the Ten Commandments on the facade of the Chester County, Pennsylvania courthouse. The court held that the County's refusal to take down the plaque was not motivated by a desire to endorse religion, but rather by a desire to "preserve a longstanding plaque." It also stated that the plaque was not a "real threat" to separation of church and state, thus invoking the spirit of the legal maxim "de minimis non curat lex" or "the law does not bother with trifles." This article examines the Freethought decision and concludes that it reached an incorrect result by misapplying both tests used by courts to decide Establishment Clause cases. The Third Circuit confused "history" and "context" in its endorsement test analysis and attributed extremely unrealistic knowledge to the reasonable observer used in the endorsement test. It also did not fully apply the Lemon test. Comparison with Ten Commandments cases in other circuits underscores the Third Circuit's errors. Finally, the article investigates the use of the legal maxim "de minimis non curat lex" and determines that the maxim should not be applied in Establishment Clause cases because it is incongruous with the purpose of the Bill of Rights.

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Introduction

On July 1, 2003, the Eleventh Circuit Court of Appeals announced its decision in Glassroth v. Moore.¹ Finding Alabama Supreme Court Chief Justice Roy Moore's installation of a 5,280-pound granite monument of the Ten Commandments in the rotunda of Alabama State Judicial Building to be a violation of the Establishment Clause, the court upheld an order requiring the monument's removal. The decision was the focus of considerable media scrutiny, fueled by the feelings of many that the court was trying to destroy the "moral foundation of [the] law."² Protestors assembled in front of the judicial building, refusing to leave and threatening to block any attempt to move the monument.³ The saga was yet another reminder of the controversy engendered by court decisions dealing with religious symbols in public places.⁴Page 510

Just days before the Eleventh Circuit handed down its decision in Glassroth, the Third Circuit ruled on another case involving the Ten Commandments. In Freethought Society of Greater Philadelphia v. Chester County,⁵ the court upheld the constitutionality of the display of a plaque of the Ten Commandments on the facade of the Chester County courthouse. Unlike Glassroth, there was no public uproar or extensive media coverage. However, Freethought is the more significant case from a legal perspective. This article examines the Freethought decision and evaluates how the Third Circuit reached its decision. Part I presents a brief overview of the Supreme Court's Establishment Clause jurisprudence. This section will establish that in deciding an Establishment Clause case, courts must look to both the Lemon⁶ test and the endorsement test as articulated by Justice O'Connor in Lynch v. Donnelly⁷ and County of Allegheny v. ACLU.⁸ Part II examines Freethought's facts and discusses the Court's reasoning for finding the display constitutional. Part III argues that the court misapplied both Establishment Clause tests. The court failed to distinguish between "history" and "context" in its endorsement test analysis, charged the "reasonable observer" with far too much knowledge, and overextended the holding of a prior Establishment Clause case, Marsh v. Chambers.⁹ Part IV suggests that the underlying reason for the court's decision was that it believed the display to be a de minimis violation of the Establishment Clause which did not merit the attention of the court. Part IV further examines the legal maxim "de minimis non curat lex," and its use in the constitutional context. This section will show that the maxim has occasionally been utilized by courts, and that the Supreme Court has at least hinted at its use. Part V concludes that a de minimis exception should not be created in order to avoid making difficult decisions regarding the meaning of the Establishment Clause and that such an exception would be incompatible with the purpose of the Bill of Rights.

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I History of the Supreme Court's Establishment Clause Jurisprudence

The problem of reaching a consistent approach to resolving Establishment Clause¹⁰ cases has plagued the Supreme Court for decades. After only deciding one case in the nineteenth century under the Establishment Clause, Bradfield v. Roberts,¹¹ the Court spent much time in the twentieth century trying to determine the clause's meaning.¹² Recent decisions, such as Lynch v. Donnelly¹³ and County of Allegheny v. ACLU,¹⁴ illustrate a Court deeply divided as to what government action is impermissible under the Establishment Clause. While a full review of the Court's extensive Establishment Clause jurisprudence is outside of the scope of this casenote, an examination of the two major tests¹⁵ which have emerged from those cases is necessary in order to understand how the Third Circuit erred in Freethought.

A The Lemon Test

While it has taken a number of different directions on the meaning of the Establishment Clause, the Supreme Court achieved a modicum of consistency in Establishment Clause jurisprudence for about twenty years by utilizing the test developed in Lemon v. Kurtzman¹⁶ in 1971.¹⁷ The Lemon test is actually a combination ofPage 512 the criteria used to decide Establishment Clause cases in the years leading up to the Lemon decision.¹⁸ In order to pass constitutional scrutiny under Lemon, a government action must have a secular legislative purpose, its principal or primary effect must be one thatPage 513 neither advances nor inhibits religion, and there must be no excessive government entanglement with religion.¹⁹

In Lemon, the Court was called upon to determine the constitutionality of two statutes from Rhode Island and Pennsylvania which provided state aid to nonpublic schools. The Court found that the statutes had the valid secular purpose of enhancing the quality of education in all schools covered by the compulsory attendance laws, thus passing the first prong.²⁰ However, the Court believed that both statutes created excessive government entanglement with religion because of the likelihood that teachers in public schools would be unable to remain neutral towards religion while teaching their classes.²¹ Having failed Lemon's third prong, the statutes were struck down.

Although Lemon provides a bright-line test for deciding Establishment Clause cases, it has been vigorously criticized by judges and scholars alike.²² Over the protests of Justice Brennan, the Lemon test was strangely ignored in the important Establishment Clause case of Marsh v. Chambers.²³ By the early 1990s, several members of the Supreme Court had expressed their displeasure withPage 514 the test, or certain parts of it. Justice Scalia went as far as to compare Lemon to a "ghoul in a late-night horror movie" that refuses to go away despite being "repeatedly killed and buried."²⁴

Nonetheless, Lemon remains good law. As the Court put it in Lamb's Chapel v. Center Moriches Union Free School District,²⁵ "Lemon, however frightening, has not been overruled."²⁶ The various circuit courts continue to cite Lemon,²⁷ and until it is overruled, no Establishment Clause case is properly decided without consideration of its three prongs.

B The Endorsement Test

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The other major test employed in Establishment Clause cases is the endorsement test,²⁸ which was first articulated by Justice O'Connor in her concurring opinion in Lynch v. Donnelly.²⁹ O'Connor presented the endorsement test as a refinement of the Lemon test. Beginning with the premise that "the Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community," she explained that government action directly infringes this command if it either purposefully or unintentionally has "the effect of communicating a message of government endorsement or disapproval of religion."³⁰

In order to determine whether a particular practice unconstitutionally endorses religion, O'Connor looked to the "reasonable observer."³¹ The relevant inquiry is whether or not a reasonable observer would perceive the challenged display as a government endorsement of...