NEUTRALITY WITHOUT A TAPE MEASURE: ACCOMMODATING RELIGION AFTER AMERICAN LEGION.

• Author: Gaylord, Scott W.

In County of Allegheny v. ACLU Greater Pittsburgh Chapter, Justice Kennedy famously criticized the endorsement test as requiring judges to "us[e] little more than intuition and a tape measure." (1) Because the endorsement test focused on the number of secular symbols, whether they created unique focal points and their proximity to any religious imagery, (2) Justice Kennedy contended that it fostered "a jurisprudence of minutiae," (3) which was "flawed in its fundamentals and unworkable in practice." (4) His criticisms of the endorsement test highlighted an ongoing disagreement between and among the Justices regarding the meaning of the Establishment Clause, a dispute that traced its origins all the way back to Everson v. Board of Education in which the Court invoked Thomas Jefferson's "wall of separation" between church and state. (5) While all of the Justices have agreed that the Establishment Clause requires the government to be neutral with respect to religion, they disagree adamantly about what "neutrality" requires.

For those who advocate for a strict separation between church and state, the "wall must be kept high and impregnable." (6) Atop the wall, the Justices keep watch for "the slightest breach" of neutrality, (7) guarding against, what history had shown to be, the dangerous intersection of the secular and religious realms: "[The Establishment Clause's] first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion." (8) To avoid such a union, the government must remain neutral "between religion and religion, and between religion and nonreligion." (9) On this view, religion is largely a private affair left to the conscience of the individual to be followed (or not): "religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate." (10) The government, therefore, generally must stay out of religion, avoiding not only an establishment of religion, but also any favoritism that "mak[es] adherence to a religion relevant in any way to a person's standing in the political community." (11) These concerns ultimately gave rise to the Lemon and endorsement tests, (12) which policed neutrality through the lens of a reasonable observer who was aware of the history and tradition of the community and, therefore, could assess whether the challenged action had the purpose or effect of promoting or favoring religion.

Another set of Justices concluded that the Religion Clauses had a very different purpose. The Religion Clauses singled out religion for special protection, recognizing and safeguarding an individual's right of conscience. (13) As a result, the government needed to remain neutral between and among religions because each individual owed a duty to his God that transcended his obligation to the secular authority. Madison made this point directly in his Memorial and Remonstrance Against Religious Assessments:

Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. (14) For its part, the Establishment Clause precluded the government's establishing a particular religion or coercing individuals to compromise their consciences and adhere to one specific faith. (15) But the Establishment Clause could--and in some circumstances should--accommodate religion to acknowledge, respect, and (perhaps even) promote the duty that different religious adherents owed to their God. For the accommodationists on the Court, our Nation's history of religion in the public sphere not only confirms that the Establishment Clause does not require neutrality between religion and nonreligion, but also supports replacing the reasonable observer with a history and tradition test. Moreover, the government's noncoercive recognition and accommodation of religion have the additional salutary effects of fostering toleration, respect, and civic virtue.

This article argues that in recent years the Roberts Court has moved decidedly towards the accommodationist view of neutrality--providing greater protection for the free exercise of religion and a correspondingly narrower view of the limits that the Establishment Clause imposes on government-religion interactions. The Court's recent decision in American Legion v. American Humanist Ass'n (16) confirms this shift, repudiating Lemon and the endorsement test in the context of longstanding religious monuments, symbols, and practices. What test the Court will use to ensure neutrality going forward is less clear. Although seven Justices agreed that the Lemon and endorsement tests no longer hold sway in this context, the case spawned seven different opinions, including five concurrences setting out different Establishment Clause standards. A careful review of these opinions, though, reveals that a majority of the Court takes the Religion Clauses to require neutrality only between and among religions, not between religion and nonreligion. And the article contends that this is true regardless of how many religious and secular references there are and how close they are to one another (i.e., there is no spatial tape measure) and regardless of how long the government has engaged in the facially religious expression (i.e., there is no temporal tape measure). As Justice Gorsuch puts the point in his American Legion concurrence, "what matters when it comes to assessing [facially religious government speech]... is not its age but its compliance with ageless principles." (17)

The first section of the article considers the development of the Court's diverging views on neutrality, analyzing the jurisprudential underpinnings of both the strict(er) separationist and accommodationist positions. Those favoring the wall of separation model articulated in Everson rely on the history of religious establishments in the sixteenth and seventeenth centuries and the growing pluralism to argue that the Establishment Clause requires neutrality between religions as well as between religion and nonreligion. These concerns found expression in Lemon and the endorsement test. As the accommodationists on the Court noted repeatedly, though, criticisms of these Establishment Clause tests abounded among the Justices on the Court, the lower courts, and legal scholars. In their place, the accommodationists drew on a different aspect of the country's history--the numerous and ongoing references to the Divine in the public square. This history of events at and subsequent to the founding demonstrated the meaning of the Establishment Clause--the Establishment Clause could not require neutrality between religion and nonreligion because religious references were and remain widespread in the public square.

The second section explores the Court's commitment to neutrality between and among religions, which is evident in the Roberts Court's recent decisions broadening Free Exercise protections (including Tandon v. Newsom and the recent statement of four Justices in Kennedy v. Bremerton School District (18) indicating a willingness to reconsider Employment Division v. Smith) and in American Legion's movement towards an Establishment Clause test rooted in history and tradition. Both of these changes demonstrate that the majority neither views religious exercise as a wholly private endeavor nor takes noncoercive state-religion interactions to corrupt government or religion. Rather, American Legion emphasizes that the government may accommodate religious expression in the public square to "further the ideals of respect and tolerance embodied in the First Amendment." (19) Thus, going forward, the Roberts Court is poised to allow for greater noncoercive church-state interactions in the public square and to do so for a reason that frequently is overlooked--to promote morality and civic virtue for the good of the individual religious believer and the Nation as a whole. Contrary to the history of division and strife that frequently marked the strict separationist accounts of the Religion Clauses, the accommodationists on the Court view noncoercive religious expression in the public square as consistent with our country's history and tradition.

1. THE MEANING AND SCOPE OF THE ESTABLISHMENT CLAUSE DEPENDS ON WHICH OF THE CONFLICTING VIEWS OF NEUTRALITY THE COURT APPLIES IN A PARTICULAR CASE

   In Federalist No. 51, Madison addressed a central concern confronting the Nation in the wake of the weaknesses inherent in the Articles of Confederation and Perpetual Union--how to ensure that the federal government had sufficient power to effectively govern the people without itself succumbing to the pitfalls of unbridled power:

   If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. (20) While Madison relied primarily on structure to cabin governmental overreach--"split[ting] the atom of sovereignty" (21) and subdividing power between and among the three branches (22)--structure alone could not guarantee the government's ability to control the religious dissidents who founded the United States. The enumerated powers in Article I, Section 8 provided the federal government with broad authority to regulate the people, (23) who, as Hamilton explained, were "the only proper objects of government." (24) The British monarchy and other governments had had broad...