A Missouri city is an interested spectator in a legal battle over the Establishment Clause of the First Amendment to the U.S. Constitution. However, the outcome for the city of Ozark will be decided 1,047 miles away in Bladensburg, Md., in a case involving a 93-year-old World War I monument featuring a cross. More importantly, the U.S. Supreme Court – set to hear the case Feb. 27 – may see it as an opportunity to demolish the so-called “endorsement test” used by “activist” judges in their interpretations of the Establishment Clause, ending a half century of confusing, wrong-headed decisions about whether public displays of religion are unconstitutional.
The Establishment Clause is the portion of the First Amendment that prohibits the government from favoring one religion over another. What is the “endorsement test?” Well, it’s like grabbing Jell-O. It is convoluted thinking, giving judges the freedom to make it up as they go. To heck with what the Founders intended. Today we call it judicial activism.
That is a lot to digest, so let’s break it down.
In December, Ozark had its annual Christmas lights display – that featured a large cross as well as secular items – in Finley River Park. An attorney with the Wisconsin-based atheistic Freedom From Religion Foundation (FFRF) sent a threatening letter to Ozark officials. FFRF routinely bullies school districts and local governments anytime it perceives Establishment Clause violations. In most cases, it involves Christian public displays.
City officials originally announced they would honor FFRF wishes and remove the cross. Hundreds of citizens complained and after studying the issue, city officials reversed their decision. While plans call for the cross to be moved to nearby private property, the legal question remains if the cross will continue to be part of the Christmas display.
This is where the cross monument in Bladensburg, Md., comes in. Some legal observers believe the case gives the Supreme Court an opportunity to adopt a new “historical/coercive” legal test, replacing the “endorsement test.” This new “test” will clarify cases concerning passive displays, reduce factious litigation and promote consistency across cases.
The Trump administration, which has filed a friend-of-the-court brief defending the Bladensburg monument, urges the Supreme Court to resolve such cases with reference “to the practices of the Founding Fathers.” It is a strong case indeed. In the 1983 decision, Marsh v. Chambers dealt with whether legislative bodies could open their sessions with prayer. Lower courts ruled they could not, but in a 6-3 decision the Supreme Court reversed the lower courts, ruling legislative prayers were not Establishment Clause violations. The six judges drew from history to drive home their point: if the practice of paying chaplains who offered public prayers was accepted by the same Framers who voted for the Establishment Clause, then it must be consistent with the Establishment Clause.
This is the same reasoning Kennedy applied in the 1989 case County of Allegheny v. ACLU Greater Pittsburgh. The ACLU sued after the courthouse displayed a nativity scene as part of a Christmas display. It was ruled a violation of the Establishment Clause on a 5-4 decision by justices using the “endorsement test.” However, it was Kennedy who wrote a powerful dissent, perhaps foretelling of things to come in Establishment Clause cases. The dissenters, including Kennedy, looked primarily to history, adding that government violates the Establishment Clause when it “coerces” Americans to support or participate in religion. He noted Nativity scenes have been celebrated throughout American history and do not “coerce” anyone. “Passersby who disagree with the message conveyed by these displays are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech.” Thus there was no “coercion” and no violation of the Establishment Clause.
Kennedy built on the ideas of historical tradition and “coercion” in the Town of Greece, N.Y. v. Galloway case in 2014. Writing for a 5-4 majority, Kennedy ruled “that the Establishment Clause must be interpreted by reference to historical practices and understandings.” Legislative prayer was – and is – such a practice, Kennedy ruled. “Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change,” he wrote.
Legal observers believe the U.S. Supreme Court now has five justices who embrace Kennedy’s “historical/coercion” tests. If true, it sets the stage for 50 years of judicial activism through the “endorsement test” on the Establishment Clause to mercifully come to an end. The Bladensburg monument case may tell the tale and Ozark, along with the rest of our nation, will be watching.