Amid real cultural and political pressures against faith in public life, the Supreme Court is proving a pleasantly reliable ally.
Amid real cultural and political pressures against faith in public life, the Supreme Court is proving a pleasantly reliable ally.
O ne of the consequences of increased secularization in our culture has been antagonism to religion, by our major institutions. It’s felt among corporations, Hollywood, and, often, the federal bureaucracy.
Yet one institution that refuses to fall in line is the Supreme Court. Indeed, the news of the past week shows that we are nearing the potential overturning of Roe v. Wade and Planned Parenthood v. Casey — a goal that religious conservatives have worked tirelessly for decades to achieve. We won’t know that the victory is secure until the final opinion comes out. But while we wait, we were given yet another judicial victory for religious expression last week. In a unanimous ruling in Shurtleff v. Boston, the Supreme Court ruled in favor a Christian group, Camp Constitution, against the city of Boston.
Boston has three flag poles in front of its city hall, one of which it allows private groups to use while conducting events nearby. The city has permitted hundreds of groups to hoist their flags over the years and hadn’t rejected any applicant, until Camp Constitution requested to raise the “Christian Flag” during an event. Camp Constitution sued, arguing that the city’s decision violated its First Amendment free-speech rights.
The Court’s ruling — and the ultimate victory for religious expression — was not by a borderline vote. It didn’t even fall along ideological lines. That’s right. All nine justices affirmed that the city of Boston had violated Camp Constitution’s First Amendment rights.
Yet while Justice Breyer’s majority opinion came to the right conclusion, his explanation risks leaving this victory shallower than deserved. Right up to the end of his tenure, Justice Breyer has loved balancing tests. He savors laying out a series of factors and seeking what the totality of the circumstances requires a justice to do. Doing so usually obscures the core principles involved and leaves judges with guidance so difficult to parse that subjectivity becomes almost impossible to avoid. That is, again, what’s on display here.
Thankfully, we can turn to the written concurrences for greater clarity. First, consider Justice Alito’s, which sets out a clear and helpful standard for determining such cases. Alito identifies that the main constitutional problem in Shurtleff concerned whose speech was at issue. The government may speak its own view without following the rules of equal expression found in the First Amendment. Otherwise, the government would not be able to express any opinion on policy, making government action nearly impossible. Given the fact that the government in the United States, at whatever level, expresses the view of the represented people, this set-up would violate the principles of popular rule.
That said, courts must confirm when the government speaks and does so officially. Otherwise, the speech comes from a private source, even in instances such as this one where the government permits a private person to use its grounds and resources to communicate. In those instances, the full range of First Amendment speech protections exist and must be rigorously enforced. Such was the case here. The city of Boston possessed plenty of power to pick its own flag to fly, regardless of First Amendment claims. When it opened that flag pole to private speakers, the rules changed to equal treatment.
Justice Gorsuch rightly points out in his concurrence why Boston acted as it did, even though such actions resulted in a unanimous loss. He points to the Lemon test, the standard for judging violations of the First Amendment’s establishment clause that was produced by the Court’s 1971 decision in Lemon v. Kurtzman. This test asks three questions of a law or government activity to see whether it violates the ban on Congress’s making a law respecting the establishment of religion. These include whether the government had a secular purpose in the action, whether its action inhibited or helped religion, and whether it created “excessive entanglement” with religion. Gorsuch rightly notes that this test proved both constitutionally suspect and a complete mess to enforce. Attempts to save it, such as asking what a “reasonable person” would think about the religious display, only make things worse. In a memorable paragraph, Gorsuch writes:
Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own “reasonable observer” avatar. In this game, the avatar’s default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it “endorses” religion. If so, game over.
Lemon was such a mess that the Court has refused to employ it for more than 20 years, despite invitations to do so.
But Gorsuch highlights another reason why Lemon won’t go away, at least in places like Boston. The problem with Lemon is that it makes subjectivity easier; in other words, it’s far easier to render subjective judgments in the service of partisan goals than it is to look to the original history and meaning of the First Amendment’s establishment clause. Indeed, Gorsuch notes that some would like to “lump in religious speech with fighting words and obscenity.” Moreover, these same people wish “to celebrate only a ‘particular’ type of diversity consistent with popular ideology.”
Thus, we see these justices pushing back against attempts to take the cultural animosity against religion and turn it into legal discrimination. For a constitution that gives so much attention and protection to religion, this defense is right and necessary. Codifying religious animosity might be a goal, especially for the current political Left. It can legally occur only over the Constitution’s dead (or greatly amended) body. Unfortunately for those who wish to do so, as Gorsuch notes, “the First Amendment is not exactly your friend.”
Religious conservatives have yet another judicial victory to celebrate. And celebrate they should. But they also have work to do, and Justices Alito and Gorsuch have given them sound advice on how to proceed. Religious conservatives should listen and act. Unless, of course, they’re tired of winning.