appeal and district judges. As the Fifth Circuit Court of Appeals observed in Helms v. Picard, 151 F.3d 347, 350 (5th Cir. 1998), rev’d sub nom. Mitchell v. Helms, 530 U.S. 793 (2000), this Court’s Establishment Clause jurisprudence is a “vast, perplexing desert.” The United States Court of Appeals for the Fourth Circuit recently chafed at having to “venture into the often-dreaded and certainly murky area of Establishment Clause jurisprudence.” Koenick v. Felton, 190 F.3d 259, 263 (4th Cir. 1999). See also Smith v. Blue Valley Unified Sch. Dist., 1989 WL 42652, *4 (D. Kan. 1989). The United States Court of Appeals for the Tenth Circuit likewise shuddered upon entry into the Establishment Clause thicket “due to the inherent difficulty of attempting to discern an individual’s unexpressed or psychological motive, [ exacerbate what is already perceived to be a morass of inconsistent Establishment Clause decisions.” Bauchman for Bauchman v.
Such observations are especially applicable to the so-called “religious display” cases. Recently, the Third Circuit applied this Court’s “murky” Lemon test, to resolve an Establishment Clause challenge to a seventy-year-old Ten Commandments plaque, placing great emphasis on the facts, including the location of the plaque away from the main entrance to a county courthouse. Freethought Soc. of Greater Phila. v.
This Court acknowledged that “the case’s tortuous history ... indicates well the degree to which our Establishment Clause jurisprudence has shifted ... while nevertheless retaining anomalies with which the lower courts have had to struggle.” Mitchell v. Helms, 530
parallel the conclusions of the Court of Appeals below “that factual specifics and context are nearly everything when it comes to applying the Establishment Clause to religious symbols and displays.” Glassroth, 335 F.3d at 1300 (App. 38a). As the Third Circuit Court of Appeals has observed:
“The uncertain contours of these Establishment Clause restrictions virtually guarantee that on a yearly basis, municipalities, religious groups, and citizens will find themselves embroiled in legal and political disputes over the content of municipal displays.” ACLU of
By its assertion that “factual specifics and context are nearly everything when it comes to applying the Establishment Clause,” the Court of Appeals below dispensed with any notion that it had to give any principled reason for distinguishing one case from another. See 335 F.3d at 1300-01 (App. 38a-40a). Thus, the Court of Appeals below has chosen the same path as the Court of Appeals for the Fifth Circuit which has “eschewed the tripartite Lemon analysis in favor of a more case-bound approach because ... a fact-sensitive application of existing precedents is more manageable and rewarding than an attempt to reconcile the Supreme Court’s confusing and confused Establishment Clause jurisprudence.” Doe v.
B. The Lemon Test Undermines The Rule Of Law.
Even when the lower federal courts have attempted to apply a legal test to resolve an Establishment Clause case, they have found a “cherry-picking” array of choices. In Stone v.
Graham, 449 U.S. 39 (1980), this Court applied the original formulation of the “three-part” Lemon test to assess the constitutionality of a Ten Commandments display. While the Lemon test appears to be the test of choice in Ten Commandments display cases, as it was in the courts below (335 F.3d at 1295-97 (App. 27a-32a); 229 F. Supp. 2d at 1299- 1301 (App. 58a-64a)), it is uncertain whether the classic Lemon test as applied by this Court in Stone is the Lemon test of today’s Court. In Agostini v. Felton, a majority ruled that the third prong—concerning “excessive entanglement”—has been merged into the second prong which, itself, had previously been transformed into a “no government endorsement of religion” test. See Agostini v. Felton, 521
355 (4th Cir. 2003). The Court of Appeals for the Third Circuit, however, has even modified this Court’s two-step Lemon test, reducing it to one: whether a Ten Commandments display constitutes an endorsement of religion. See Freethought Soc. of Phila., 334 F.3d at 258. In effect, so has the Court of Appeals below, giving lip-service to the classic three-part Lemon test, but conducting plenary review only of the “endorsement” prong. 335 F.3d at 1297 (App. 31a-32a).
In addition to fostering this revisionist impulse by criticism of the Lemon test (see Lee v. Weisman, 505
(4) Stone has become the touchstone of all Ten Commandment display cases, as it was in the Court of Appeals below. See 335 F.3d at 1295 (App. 27a, 30a). Yet, as Justice Rehnquist stated in his dissent, Stone was decided without full briefmg on the merits and oral argument. 449
uphold the constitutionality of legislative chaplaincies. One year later, this Court forthrightly stated its “unwillingness to be confined to any single” test in the Establishment Clause area. Lynch v. Donnelly, 465
C. The No Endorsement Test Violates Free Exercise .
Adherence to the “no government endorsement” variation of the Lemon test has invited a slew of cases challenging Ten Commandments monuments on the sole ground that a plaintiff is offended by the monument, made to feel like a second-class citizen, and who has changed his behavior, however slightly, as a consequence of having taken offense.
According to the Court of Appeals below, the Plaintiffs in this case—all lawyers—were “offended,” made to “feel like outsiders,” and, as a consequence, two of the three “altered their behavior” because of “the wound ... inflicted [ them] by the monument itself,” not because they disagreed with the Chief Justice’s “views about religion and government.” Glassroth, 335 F.3d at 1293 (App. 22a). But, in another part of its opinion, the Court of Appeals found the monument was inseparable from the Chief Justice’s views! Since the monument was so inseparable from the Chief Justice’s religious views, it is impossible for anyone to conclude that any one of the three Plaintiff-lawyers’ claimed offense and hurt feelings were the consequence of anything other than the observation of the Chief Justice’s “religious views” with which each disagrees. See 335 F.3d at 1292-93 (App. 20a-23a).
By sustaining the Plaintiffs’ standing in this case, then, the Court of Appeals has enabled Plaintiffs to parlay their hurt “feelings” into judicial imposition of second-class citizenship upon Chief Justice Moore because he has “religious views” of law and government. After all, had the Chief Justice had “secular” views of how justice should be administered, and pursuant thereto had erected a monument dedicated to the works of Oliver Wendell Holmes, no plaintiff could have sustained access to a federal court even if they were “offended” and made to “feel like outsiders” by Holmes’ legal positivist views. Thus, by affirming Plaintiff-lawyers’ standing in this case and finding that the Chief Justice has “endorsed” a theistic view of the moral foundation of law, the Court of Appeals has effectually imposed a “religious test” upon Chief Justice Moore. After all, if the Chief Justice held to a more pluralistic view, erecting a monument that identified God as only one of many sources of law, the District Court would apparently have
found the monument to have a secular purpose and to not be an “endorsement of religion,” and the Court of Appeals would have affirmed. See 229 F. Supp. 2d at 1299 (App. 58a-60a); 335 F.3d at 1296-97 (App. 28a-32a).
Warning against such misuse of the Establishment Clause, Justice Brennan opined that under the Free Exercise Clause:
Government may not inquire into the religious beliefs and motivations of officeholders—it may not ... question whether their ... actions stem from religious conviction.... In short, government may not as a goal promote “safe thinking” with respect to religion and fence out from political participation those ... whom it regards as overinvolved in religion.... The Establishment Clause may not be used as a sword to justify repression of religion or its adherents from any aspect of public life.
McDaniel v. Paty, 435
D. The Lemon Test Undermines The Tenth Amendment.
When applied to the actions of state officials, the “no endorsement” test not only misapplies the First Amendment’s prohibition against laws respecting establishments of religion, but unconstitutionally intrudes upon the Tenth Amendment. As Justice Thomas has recently written, the Establishment Clause was originally written to preserve to the states “greater latitude in dealing with matters of religion.” Zelman, 536