Putting religious symbolism in context: a linguistic critique of the endorsement test.

• Author: Hill, B. Jessie

TABLE OF CONTENTS INTRODUCTION I. THE SUPREME COURT'S ANALYSIS OF RELIGIOUS DISPLAYS UNDER THE ENDORSEMENT TEST A. Lynch, Allegheny, and Capitol Square B. The Role of Intent in the Religious Symbol Cases II. EXISTING CRITIQUES (AND ONE PROMINENT DEFENSE) OF THE ENDORSEMENT TEST III. THE EXPRESSIVE AND THE PERFORMATIVE: SPEECH ACT THEORY AND BEYOND A. Speech Act Theory and Its Relevance B. The Dependence of Meaning on Context, and the Inability of Context to Delimit Meaning C. Context and Consensus IV. CONTEXT AND CONSENSUS IN THE COURTS A. The Supreme Court's Struggles with Context 1. Immediate Physical Setting 2. Overall Holiday Context 3. Historical Context B. The Courts' Struggles with Social Context and Consensus V. CAN THE PROBLEM OF CONTEXT BE SOLVED? A. Per Se Rules Permitting or Forbidding Religious Symbols on Public Property 1. Per Se Rule Permitting Religious Symbols 2. Per Se Rule Forbidding Religious Symbols B. A Presumption against Religious Symbols on Government Property CONCLUSION INTRODUCTION

The treatment of Establishment Clause challenges to displays of religious symbolism by the Supreme Court and the lower courts is notoriously unpredictable: a creche is constitutionally acceptable if it is accompanied by a Santa Claus house and reindeer, a Christmas tree, and various circus figures, (1) but unacceptable if it is accompanied by poinsettias,(2) a "peace tree," (3) or a wreath, a tree, and a plastic Santa Claus. (4) A menorah may be displayed next to a Christmas tree, (5) or next to Kwanzaa symbols, Santa Claus, and Frosty the Snowman, (6) but not next to a creche and a Christmas tree. (7) A number of commentators have suggested that this disarray can be blamed largely on the chaotic state of the Supreme Court's Religion Clauses doctrine. (8)

Since the 1980s the Supreme Court has recognized that the public display of religious symbols may, in some circumstances, violate the Establishment Clause. (9) The Supreme Court's guidance as to when such a display will violate the Establishment Clause has been vague, however; in applying what has come to be known as the "endorsement test," the Court has essentially declared that public displays of religious symbols are impermissible if they convey a message of endorsement of religion. (10) Yet, beyond stating that it is necessary to examine the context of the display, the Supreme Court has failed to provide a satisfactory way of determining what message a given religious symbol or set of symbols actually conveys. This failure has led to a widely recognized inconsistency, confusion, and apparent subjectivity in the Supreme Court and lower court cases dealing with public displays of religious symbolism.

This Article draws upon linguistic theory to explain why the task of discerning the meaning of a display of religious symbolism has proven so unmanageable. In particular, it draws on the branch of linguistic theory known as "speech act theory," as well as some postmodern critiques of, and elaborations on, speech act theory. (11) The defining feature of speech act theory, as I use the term here, is that it emphasizes the effects of linguistic utterances and the contextual features that give rise to those effects, rather than the intent behind the utterances. These features of speech act theory make this branch of linguistic theory particularly relevant to the analysis of meaning in religious symbol cases, because the endorsement test is similarly concerned primarily with the (endorsing) effect of religious symbolism and with the contextual features that may create or negate an endorsement effect.

Approaching the endorsement test through the lens of speech act theory leads to the conclusion that any constitutional test that is concerned with determining the "meaning" of religious displays will ultimately fail to produce a stable, predictable jurisprudence. This is because meaning, in those cases, must rely on the context of the display, yet context, itself, is inherently unstable, elusive, and incapable of formulation into clear legal rules. Moreover, the difficulties stemming from the endorsement test's reliance on context are aggravated in cases involving religious symbolism by two factors: first, the absence of any meaningful role for the potentially stabilizing element of subjective intent in the vast majority of religious symbol cases; and second, the diversity of religious perspectives, accompanied by an extreme lack of societal consensus regarding the appropriate degree of governmental acknowledgement of religion.

This critique of the endorsement test is unique in its linguistic focus and in its emphasis on the specific problem of context. Unlike most existing critiques, the analysis set out in this Article suggests that the indeterminacy and unpredictability in the application of the endorsement test are not a result of doctrinal incoherence, thinly veiled politics, or unconscious bias; rather, they are inherent in the problem of attempting to determine the social meaning of symbolic government action against the backdrop of extreme viewpoint plurality, without the potentially stabilizing element of subjective intent to guide the inquiry. This approach thus differs from existing critiques of the endorsement test, which have primarily focused on the problematic construct of the "reasonable observer," established by the Court as the perspective from which the meaning of a symbolic act or display is to be judged. (12)

Additionally, because this critique reveals difficulties inherent in any highly context-dependent inquiry into meaning, it may suggest a more general critique of attempts to build a jurisprudence based on the symbolic dimensions of government action. Such attempts have been the focus of the philosophy known as "expressivism," which has been the subject of intense scholarly consideration in recent years. (13) This Article is thus primarily an argument about one aspect of Establishment Clause doctrine; at the same time, however, it is situated within the literature on "expressivism" and "social meaning," examining the extent to which the central hermeneutic questions raised by those strains of thought have gone unanswered in the literature, just as they have in the specific context of the endorsement test. Nonetheless, this Article does not intend to question--as several recent and important commentaries have done (14)--whether it is truly meaningful to understand the government to be "sending messages," whether it is accurate to view official action as having "expressive dimensions," or whether it is proper for Establishment Clause doctrine to be concerned with governmental "messages"; instead, this Article assumes that, at least in the narrow class of cases dealing with public displays of religious symbols, the endorsement test's focus on the symbolic or "expressive" harm caused by religious symbols is entirely appropriate. In other words, whatever the merits of expressivism generally, this Article takes the position that the religious symbolism cases, with their near-exclusive focus on symbolic or stigmatic harm, are the paradigmatic cases for applying the expressivist model. (15)

Part I of this Article introduces the endorsement test through a summary of the two principal Supreme Court cases dealing with religious symbols, Lynch v. Donnelly (16) and County of Allegheny v. ACLU, (17) as well as of Capitol Square Review & Advisory Board v. Pinette, (18) a case involving a religious symbol on public property in which the Court did not apply the endorsement test. Part I notes, and seeks to explain, the relatively insignificant role played by subjective intent in the endorsement test as it has been applied by the Supreme Court. Part II reviews the existing critiques of the endorsement test and one prominent defense of it--namely, the expressivist approach. Part III sets out the theoretical framework that this Article contends is most useful to understanding the failures of the endorsement test: speech act theory and its postmodern elaborations. It also explains in greater detail why these theories are relevant to the endorsement test. Part III leads to the central conclusion of this Article, which is that the instability and unmanageability of the endorsement test are attributable to its inevitable dependence on context. Part IV then demonstrates how the Supreme Court has struggled with context in its religious symbol cases. Finally, in Part V, this Article asks whether the problem of context can ever be satisfactorily resolved and, concluding that it cannot, proposes an incremental change that would help to regularize and rationalize the Supreme Court's jurisprudence in this area.

1. THE SUPREME COURT'S ANALYSIS OF RELIGIOUS DISPLAYS UNDER THE ENDORSEMENT TEST

   1. Lynch, Allegheny, and Capitol Square

      The two key Supreme Court cases establishing the test for determining the constitutionality of religious symbols are Lynch v. Donnelly and County of Allegheny v. ACLU. In Lynch v. Donnelly, the Supreme Court considered the constitutionality of a nativity scene erected by the City of Pawtucket, Rhode Island as part of a Christmas display. According to the opinion of the Court, written by then-Chief Justice Burger, the display comprised, in addition to the creche at issue in the case,

      many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that read[] "SEASONS GREETINGS." (19) After conducting a historical review of the various ways in which the government has officially acknowledged religion or celebrated religious holidays in America, the majority found that the display, "viewed in the proper context of the Christmas Holiday season," was...